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344 U.S. 334 73 S.Ct. 302 97 L.Ed. 367 PENNSYLVANIA R. CO.v.O'ROURKE. No. 60. Argued Dec. 8, 1952. Decided Jan. 12, 1953. Rehearing Denied March 9, 1953. See 345 U.S. 913, 73 S.Ct. 638. Mr. John Vance Hewitt, New York City, for petitioner. Mr. Richard C. Machcinski, New York City, for respondent. Mr. Justice REED delivered the opinion of the Court. 1 This certiorari requires us to determine which federal industrial accident statute—the Federal Employers' Liability Act or the Longshoremen's and Harbor Workers' Compensation Act—applies to the circumstances of this case. The petitioning Railroad had employed O'Rourke in its Harismus Cove Yard at Jersey City since 1942 as a 'freight brakeman.' He worked as part of a five-man crew making up trains. Their duties included work on the petitioner's car floats that moved freight and passenger cars from and to the Yard by water. The accident occurred during the night of January 28, 1948. Having already removed cars from three floats, the crew began to unload one carrying box cars. O'Rourke was required to climb up on each and release the hand-brakes, so that the cars could be pulled off the float by the engine. During the process, he fell from one and sustained the injury which is the basis for this suit. It was brought under the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq.,1 alleging a faulty brake mechanism maintained in violation of the Safety Appliance Acts, 27 Stat. 531, 45 U.S.C. § 1 et seq., 45 U.S.C.A. § 1 et seq., as the causative factor. The District Court granted the railroad's motion to dismiss on the ground that the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq., applied exclusively,2 99 F.Supp. 506, but the Court of Appeals reversed on the ground that the Liability Act covered 'railroad employees injured while engaged in railroad work on navigable waters'. It decided respondent was 'not employed in maritime employment * * * within the meaning of the Compensation Act'. 194 F.2d 612, 615. We granted certiorari, 344 U.S. 811, 73 S.Ct. 11, because of an alleged conflict with an earlier decision of this Court, Nogueira v. New York, N.H. & H.R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754. 2 The need for a federal statute of the Harbor Workers' Act type and scope became obvious after Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, decided in 1917, wherein it was held that neither the Federal Employers' Liability Act nor the state compensation statute applied to a railroad employee engaged in loading a vessel of the company which had no relation to its railroading operations. Specifically, the state act was held inapplicable because the matter fell exclusively within the federal admiralty jurisdiction: 3 'The work of a stevedore, in which the deceased was engaging, is maritime in its nature; his employment was a maritime contract; the injuries which he received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction.' 244 U.S. at page 217, 37 S.Ct. at page 529. 4 The resulting federal statute took the form of a compensation act to assure injured employees who were not seamen a prompt and certain recovery, rather than an employers' liability statute, such as was extended in 1920 to seamen by the Jones Act, 38 Stat. 1185, 46 U.S.C. § 688, 46 U.S.C.A. § 688. A summary of the congressional attempts to bring admiralty law into harmony with modern concepts of the duty of an employer although without fault to carry the burden of industrial accidents, appears in the Nogueira case, 281 U.S. at pages 135—136, 50 S.Ct. at page 305. These efforts failed to meet the constitutional test of uniformity held essential in admiralty law in order to obviate conflicting requirements in maritime commerce. Washington v. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646. They failed because Congress attempted to place legislation on maritime accidents under state compensation laws. After this Court's suggestion in the Washington case, 264 U.S. at page 227, 44 S.Ct. at page 305, Congress adopted the valid, exclusive and uniform compensation act now in effect for longshoremen and harbor workers. Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598. Seamen preferred to take the risks of the Jones Act. Nogueira v. New York, N.H. & H.R. Co., supra, 281 U.S. at page 136, 50 S.Ct. at page 305. This act and the Jones Act provided means for indemnification for injuries for all maritime employees who were beyond the constitutional reach of state legislation. A quarter of a century of experience has not caused Congress to change the plan. The 'Jensen line of demarcation between state and federal jurisdiction' has been accepted. Davis v. Department of Labor, 317 U.S. 249, 256, 63 S.Ct. 225, 229, 87 L.Ed. 246. New Jersey could not have enacted statutes granting compensation for respondent's injury on navigable water. Therefore respondent comes within the coverage of that portion of § 903(a) that includes those outside the reach of state compensation laws. 5 The Federal Employers' Liability Act, § 51, note 1, supra, gives a right of recovery due to defects because of carrier negligence in, among other equipment, 'boats.' We need not, however, in this case, determine whether the car float is a 'boat' that should be regarded as in substance a part of a railroad's extension. See Southern Pacific Co. v. Jensen, supra, 244 U.S. at page 213, 37 S.Ct. at page 527. It is clear that whether or not the boat is an extension of the railroad under the Liability Act is immaterial. The later Harbor Workers' Act by §§ 903(a) and 905 covered such injuries on navigable water and made its coverage exclusive. Nogueira v. New York, N.H. & H.R. Co., supra, 281 U.S. at pages 130—131, 50 S.Ct. at page 303. 6 Whether or not the Harbor Workers Act applies to the exclusion of the Employers' Liability Act, by virtue of the provisions of 33 U.S.C. § 905, 33 U.S.C.A. § 905, depends on § 903 which defines its 'coverage': 7 '(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. * * *'3 8 Section 904 fixes liability for this compensation with the 'employer,' who in turn is defined by § 902(4): 9 'The term 'employer' means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock.)' 10 The Court considered these provisions in a similar setting in the Nogueira case, supra. That case involved a railroad employee injured while loading freight into cars located on a moored car float. The Harbor Workers' Act was held to apply. As was pointed out: 11 'The definition (§ 903(a)) is manifestly broad enough to embrace a railroad company, provided it has employees who 'are employed in maritime employment, in whole or in part, upon the navigable waters of the United States'. * * * From the standpoint of maritime employment, it obviously makes no difference whether the freight is placed in the hold or on the deck of a vessel, or whether the vessel is a car float or a steamship. A car float in navigable waters is subject to the maritime law like any other vessel.' 281 U.S. at pages 132 and 134, 50 S.Ct. at page 304. 12 But respondent contends, in support of the result below, that the cases are distinguishable and that this language does not determine his claim. He emphasizes that Nogueira was engaged in loading the cars. This is pictured as an operation far more similar to the popular conception of a longshoreman's job than his own, which he insists was 'railroading.'4 13 We are clear, however, that the emphasis on the nature of respondent's duties here misses the mark. The statute applies, by its own terms, to accidents on navigable waters when the employer has any employees engaged in maritime service. The portions of the Nogueira opinion quoted bring this railroad company within this category, since its car float operations are there held to be maritime, as they obviously are. Whether the injury occurred to an employee loading freight into cars on the float, as in the Nogueira case, or to one like respondent moving loaded cars from a float could make no difference. Both employments are maritime. See Nogueira v. New York, N.H. & H.R. Co., supra, 281 U.S. at page 134, 50 S.Ct. at page 304. Besides § 902(4) is directed at the employer when it speaks of maritime employment, not at the work the employee is doing. The exclusive coverage of §§ 903, 905 extends to an employee of an employer, made liable by § 904, when he is injured, in the course of his employment, on navigable water. The Court of Appeals, we think, is in error in holding that the statute requires, as to the employee, both injury on navigable water and maritime employment as a ground for coverage by the Compensation Act. An injured worker's particular activity at the time of injury determines of course whether he was injured in the course of his employment within § 902(2), and whether he was a member of the crew of the vessel within the exceptions of §§ 902(3) and 903(a)(1). This explains the emphasis on the factor of the individual's job in Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 245—246, 62 S.Ct. 221, 222 223, 86 L.Ed. 184, and South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732.5 14 The Court of Appeals thought that this Court's Nogueira opinion left open, as did the Second Circuit's opinion in Nogueira, 'that the mere locus of the accident necessarily determines the right.' 32 F.2d 179 at page 182. We read the Nogueira case differently. There it was said: 15 'There was no exclusion of stevedores or of those sustaining injuries upon navigable waters in loading or unloading a vessel unless it was under eighteen tons net. The application of the act in such cases was explicitly made to depend upon the question whether the injury occurred upon navigable waters and recovery therefor could not validly be provided by a state compensation statute.' 281 U.S. at page 136, 50 S.Ct. at page 305. 16 Analogous cases lend weight to our conclusion. Buren v. Southern Pacific Co., 9 Cir., 50 F.2d 407, is indistinguishable on its facts.6 The result in Parker, as well, is totally inconsistent with any 'duties test.' Armistead, the employee there, was a janitor with the motor boat company. He had been ordered to ride in one of the boats during a test trip in order to keep a lookout for hidden objects. 314 U.S. at page 246, 62 S.Ct. at page 223. Compensation under the Harbor Workers' Act could not have been paid in connection with his death if we were to test its applicability by the nature of his regular work. A number of lower court cases are in similar vein. Those we collect in the margin deal with various types of construction and service workers, obviously not themselves engaged in traditional 'maritime employment,' if one were to look solely to the particular type of job they were engaged for.7 Each was held to fall within the scope of the statute. Section 902(4) requires the employer to pay compensation if he has 'any' employees so engaged.8 If, then, the accident occurs on navigable waters, the Act must apply if the injured longshoreman was there in furtherance of his employer's business, irrespective of whether he himself can be labeled 'maritime.' Such are the admitted facts of this case. The Longshoremen's and Harbor Workers' Compensation Act applies. 17 Reversed. 18 Mr. Justice MINTON, with whom The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice CLARK join, dissenting. 19 There is but one question here, and that is whether this respondent was engaged in 'maritime employment' at the time of his injury. If he was, then the Longshoremen's and Harbor Workers' Compensation Act applies and not the Federal Employers' Liability Act. That was decided in Nogueira v. New York, N.H. & H.R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754. In that case, an employee of a railroad company was trucking interstate freight from the dock onto a float for loading in a car standing on the car float. He was likened to a stevedore. Here this railroad employee was a brakeman engaged in removing freight cars from a car float by the use of an ordinary switch engine. The cars were in interstate commerce. Preparatory to the removal of the cars from the car float, it was this railroad employee's duty to let off the brakes. He alleged that while thus engaged, the railroad's use of a defective brake in violation of the Safety Appliance Act caused him to be thrown from the freight car to the deck of the car float and injured. The car float was upon navigable waters. 20 Was it maritime employment to get these cars off the car float or was it railroad employment? If this railroad employee had been doing his braking job on land, no one would have thought he was engaged in anything but railroad employment. Does it become maritime employment because it happened over navigable waters? We think not. The place is the only thing that differentiates the situations. Place is admittedly not enough to make what is braking on land other than braking when done over navigable waters. Not only must we look to the place where the accident happened, but of equal importance is the nature of the employment. The nature of the employment is certainly not maritime. It was an ordinary railroad chore, done by an ordinary railroad brakeman. If this were not so, the train crews on trains being ferried across navigable streams in the United States would be employed in maritime service. With the imagination of the Court's opinion, a train crew, while crossing a bridge with its supports in a navigable stream, would be employed in maritime service. 21 We would treat this railroad employee as being in law what he was in real life, a railroad brakeman, engaged in interstate commerce and subject to the Federal Employers' Liability Act, and affirm this judgment. 1 45 U.S.C. § 51, 45 U.S.C.A. § 51: 'Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. 'Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.' 2 33 U.S.C. § 905, 33 U.S.C.A. § 905: 'The liability of an employer prescribed in section 904 of this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, * * *.' 3 The portion of the section which we have omitted contains certain other conditions to applicability. None apply here. Respondent was not a member of the crew and the vessel was of more than eighteen tons. 4 The Nogueira case was a unanimous decision. On the same day Baizley Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306, 74 L.Ed. 819, was decided with three dissents. An award of state compensation to Span was reversed because as a painter employed in the repair of a completed ship lying in navigable waters, a state compensation statute could not cover him. 5 Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931; Merrit-Chapman & Scott v. Willard, 2 Cir., 189 F.2d 791, and Long Island R. Co. v. Lowe, 2 Cir., 145 F.2d 516, fall within a similar category. 6 See Gussie v. Pennsylvania R. Co., 1 N.J.Super. 293, 64 A.2d 244; Richardson v. Central R. Co. of N.J., 233 App.Div. 603, 253 N.Y.S. 789; Byrd v. N.Y. Central System, 6 N.J.Super. 568, 70 A.2d 97. Zientek v. Reading Co., D.C., 93 F.Supp. 875, is contrary but as to this see our opinion in Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190, 72 S.Ct. 216, 218, Job v. Erie R. Co., D.C., 79 F.Supp. 698, and Rist v. Pittsburgh & Conneaut Dock Co., D.C., 104 F.Supp. 29. 7 Baizley Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306, 74 L.Ed. 819 (a painter); De Bardeleben Coal Corp. v. Henderson, 5 Cir., 142 F.2d 481 (member of shore gang); Travelers Ins. Co. v. McManigal, 4 Cir., 139 F.2d 949 (carpenter); Travelers Ins. Co. v. Branham, 4 Cir., 136 F.2d 873 (foreman of a concrete pouring gang); Standard Dredging Corp. v. Henderson, D.C., 57 F.Supp. 770 (member of shore gang); Ford v. Parker, D.C., 52 F.Supp. 98 (watchman). This list is illustrative but by no means exhaustive. 8 Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, is an illustration of the difficulty encountered in applying this standard, happily not present in the case at bar. The Davis case avoided uncertainty in areas where state and federal statutes might overlap. In the present case we have two federal statutes and a line marking their coverage can be drawn.
78
344 U.S. 293 73 S.Ct. 299 97 L.Ed. 333 CITY OF NEW YORKv.NEW YORK, N.H. & H.R. CO. No. 203. Argued Dec. 19, 1952. Decided Jan. 12, 1953. Motion to Modify Judgment Denied March 9, 1953. See 345 U.S. 901, 73 S.Ct. 639. Messrs. Meyer Scheps and Seymour B. Quel, New York City, for petitioner. Mr. Edward R. Brumley, New York City, for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 The question presented is whether under the circumstances of this case reorganization of the respondent railroad under § 77 of the Bankruptcy Act1 destroyed and barred enforcement of liens which New York City had imposed on specific parcels of the railroad's real estate for street, sewer and other improvements. The improvements were made and the liens were all laid prior to 1931. Reorganization was begun in the District Court in 1935. Subsequently, acting pursuant to subdivision (c)(7) of § 77 the court issued an order directing 'creditors' to file their claims by a prescribed date, after which unfiled claims would be denied participation except for 'cause shown.' The railroad was required to mail copies of the order to mortgage trustees or their counsel and to all creditors who had already appeared in court. Other creditors had to depend for their notice on two once-a-week publications of the order in five daily newspapers, one of which was the Wall Street Journal.2 New York thus received no copy of the bar order. Its lien claims were never filed. 2 The court's final decree provided for transfer of the old railroad's properties to the newly organized company free from the city's liens.3 Jurisdiction was reserved to consider and act on future applications for instructions concerning disputes over interpretation and execution of the decree. Pursuant to this reservation the railroad brought the present action alleging that the city in failing to file had forfeited its claims; the railroad prayed for a declaration that the liens were forever barred, void and unenforcible, and that the real property was discharged and released therefrom. The District Court agreed with the railroad and enjoined enforcement of the liens. 105 F.Supp. 413. The Court of Appeals affirmed, Judge Frank dissenting. 197 F.2d 428. In both courts the city made several arguments only two of which we need consider here: (1) Since the lien claims were collectible only out of specified parcels of real estate, the city was not a 'creditor' of the railroad and consequently was not required to file its claims in bankruptcy court; (2) in the absence of actual service of notice on the city, the court was without power to forfeit its liens because of its failure to appear as a claimant. To consider these questions we granted certiorari. 344 U.S. 809, 73 S.Ct. 37. 3 (1) We reject the city's contention that it was not a creditor within the meaning of § 77 of the Bankruptcy Act. Section 77(b) defines 'creditors' as '* * * all holders of claims of whatever character against the debtor or its property * * *' and specifically defines 'liens' as 'claims.'4 We had reason to comment recently on the broad coverage of this section in Gardner v. State of New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504, where we held that state tax liens made states 'creditors' for purposes of § 77. True, the state's liens there were general charges against all railroad assets while the liens here are not. New York can look only to each parcel of property on which its liens are laid. But the reasons for our Gardner holding are equally applicable here. New York is a 'creditor' in the statutory sense and consequently was required to file its claims in bankruptcy unless freed from that duty by lack of adequate notice. 4 (2) Section 77(c)(8) of the Act states that 'The judge shall cause reasonable notice of the period in which claims may be filed, * * * by publication or otherwise.' 11 U.S.C. § 205(c)(8), 11 U.S.C.A. § 205(c)(8). We hold that publication of the bar order in newspapers cannot be considered 'reasonable notice' to New York under the circumstances of this case. 5 Notice by publication is a poor and sometimes a hopeless substitute for actual service of notice. Its justification is difficult at best. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. But when the names, interests and addresses of persons are unknown, plain necessity may cause a resort to publication. See, e.g., Standard Oil Co. v. State of New Jersey, 341 U.S. 428, 71 S.Ct. 822, 95 L.Ed. 1078. The case here is different. No such excuse existed to justify subjecting New York's claims to the hazard of forfeiture arising from 'constructive notice' by newspaper. In the first place subdivision (c)(4) of § 77 is designed to enable the court to serve personal notices on creditors. It provides that 'The judge shall require * * *' proper persons to file in the court a list of all known creditors, the amount and character of their claims and their last known postoffice addresses. This was not done here. Had the judge complied with the statute's mandate, it is likely that notice would have been mailed to New York City. Moreover, the railroad and the bankruptcy trustees knew about New York's asserted liens. And there was at least as much reason to serve a mail notice on New York City as on representatives of the railroad's mortgagees. Their liens were subordinate to New York's. There was even more reason to mail notice to the non-appearing known creditor New York City than to the creditors who had actually filed appearances as claimants. 6 Nor can the bar order against New York be sustained because of the city's knowledge that reorganization of the railroad was taking place in the court. The argument is that such knowledge puts a duty on creditors to inquire for themselves about possible court orders limiting the time for filing claims. But even creditors who have knowledge of a reorganization have a right to assume that the statutory 'reasonable notice' will be given them before their claims are forever barred. When the judge ordered notice by mail to be given the appearing creditors, New York City acted reasonably in waiting to receive the same treatment. 7 The statutory command for notice embodies a basic principle of justice—that a reasonable opportunity to be heard must precede judicial denial of a party's claimed rights. New York City has not been accorded that kind of notice. 8 Reversed. 9 Mr. Justice FRANKFURTER and Mr. Justice JACKSON doubt that a city whose only claim is in rem and which has no standing to participate in the general estate is a creditor in the sense of § 77(b). But whether New York is or is not such a creditor, they agree with the opinion that the notice in this case is not adequate support for an order destroying the liens. 1 47 Stat. 1474, as amended, 49 Stat. 911, 11 U.S.C. § 205, 11 U.S.C.A. § 205. 2 The other newspapers were located in Connecticut, Massachusetts and Rhode Island. 3 The city has contended strongly that the decree should not be so construed, but we find it unnecessary to discuss this question. 4 '* * * The term 'creditors' shall include, for all purposes of this section all holders of claims of whatever character against the debtor or its property, whether or not such claims would otherwise constitute provable claims under this title, including the holder of a claim under a contract executory in whole or in part including an unexpired lease. 'The term 'claims' includes debts, whether liquidated or unliquidated, securities (other than stock and option warrants to subscribe to stock), liens, or other interests of whatever character.' 11 U.S.C. § 205(b), 11 U.S.C.A. § 205(b).
34
344 U.S. 344 73 S.Ct. 287 97 L.Ed. 377 NATIONAL LABOR RELATIONS BOARDv.SEVEN-UP BOTTLING CO. OF MIAMI, Inc. No. 217. Argued Dec. 19, 1952. Decided Jan. 12, 1953. Mr. Mozart G. Ratner, Washington, D.C., for petitioners. Mr. Frank A. Constangy, Atlanta, Ga., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Acting under § 10(c) of the Labor Management Relations Act, 1947 (the Taft-Hartley Act), 61 Stat. 136, 147, 29 U.S.C. (Supp. IV) § 160(c), 29 U.S.C.A. § 160(c), the National Labor Relations Board ordered the reinstatement of eleven discriminatorily discharged employees of the Seven-Up Bottling Company, with back pay 'to be computed upon a quarterly basis in the manner established by the Board in F. W. Woolworth Company.' 92 N.L.R.B. 1622, 1640. In the Woolworth case, 90 N.L.R.B. 289, the Board said: 2 'The public interest in discouraging obstacles to industrial peace requires that we seek to bring about, in unfair labor practice cases, 'a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination.' In order that this end may be effectively accomplished through the medium of reinstatement coupled with back pay, we shall order, in the case before us and in future cases, that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called 'quarters,' shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which (the employee) would normally have earned for each such quarter or portion thereof, (his) net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.' 90 N.L.R.B., at 292—293. 3 In the proceeding in which the Board sought enforcement of the order against the Seven-Up Bottling Company, the Court of Appeals sustained the claim of the Company that the Woolworth formula could not be applied against it: 'The employee is entitled to be made whole, but no more. The employees here involved were not compensated on a quarterly basis. We see no sufficient reason to so compute their back pay during suspension. * * * There is nothing to indicate that the conditions apprehended by the Board in the Woolworth case, exist here.' 5 Cir., 196 F.2d 424, 427—428. Accordingly, the court modified the Board's order so that back pay would be awarded on the basis of the entire period during which an employee was denied reemployment in violation of the Act rather than on a quarterly basis. Since the general method of computing back pay is obviously a matter of importance in the administration of the Act, we brought the case here. 344 U.S. 811, 73 S.Ct. 39. 4 Section 10(c) of the Taft-Hartley Act, under which the Board made its award, derives unchanged, so far as is now relevant, from the National Labor Relations (Wagner) Act. 49 Stat. 449, 454. It charges the Board with the task of devising remedies to effectuate the policies of the Act. Of course the remedies must be functions of the purposes to be accomplished, and in making back pay awards, the Board operates under a further limitation. It must have regard for considerations governing the mitigation of damages; it must, that is, heed 'the importance of taking fair account, in a civilized legal system, of every socially desirable factor in the final judgment.' Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 198, 61 S.Ct. 845, 854, 85 L.Ed. 1271. Subject to these limitations however, the power, which is a broad discretionary one, is for the Board to wield, not for the courts. In fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience. When the Board, 'in the exercise of its informed discretion,' makes an order of restoration by way of back pay, the order 'should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.' Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568. The Woolworth formula, as a general method of computation, is, under this test, proof against judicial challenge. 5 The Board's very first published order awarded as back pay wages which would normally have been earned 'during the period from the date of * * * discharge to the date of (an) offer of reinstatement * * * less the amount * * * earned subsequent to discharge * * *.' Pennsylvania Greyhound Lines, Inc., 1 N.L.R.B. 1, 51 (1935)', enforced sub nom. National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed. 831. For fifteen years the Board followed the practice it had laid down in that case and calculated back pay on the basis of the entire period between discharge and offer of reinstatement. In 1950, in F. W. Woolworth Company, supra, the Board said: 'The cumulative experience of many years discloses that this form of remedial provision falls short of effectuating the basic purposes and policies of the Act.' 90 N.L.R.B., at 291. The Board considered that its Pennsylvania Greyhound formula for computing back pay adversely affected 'the companion remedy of reinstatement.' When an employee, sometime after discharge, obtained a better paying job than the one he was discharged from, it became profitable for the employer to delay an offer of reinstatement as long as possible, since every day the employee put in on the better paying job reduced back pay liability. Again, the old formula, in the same circumstances, put added pressure on the employee to waive his right to reinstatement, since by doing so he could terminate the running of back pay and prevent the continuing reduction of the sum coming to him. To avoid these consequences the Board laid down its new method of computation. 90 N.L.R.B., at 292 293. 6 It is not for us to weigh these or countervailing considerations. Nor should we require the Board to make a quantitative appraisal of the relevant factors, assuming the unlikely, that such an appraisal is feasible. As is true of many comparable judgments by those who are steeped in the actual workings of these specialized matters, the Board's conclusions may 'express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions * * *'; and they are none the worse for it. Chicago, Burlington & Quincy R. Co. v. Babcock, 204 U.S. 585, 598, 27 S.Ct. 326, 329, 51 L.Ed. 636. It is as true of the Labor Board as it was of the agency in the Babcock case that '(t)he board was created for the purpose of using its judgment and its knowledge.' Ibid. 7 It will not be denied that the Board may be mindful of the practical interplay of two remedies, back pay and reinstatement, both within the scope of its authority. Surely it may so fashion one remedy that it complements, rather than conflicts with, another. It is the business of the Board to give coordinated effect to the policies of the Act. We prefer to deal with these realities and to avoid entering into the bog of logomachy, as we are invited to, by debate about what is 'remedial' and what is 'punitive.' It seems more profitable to stick closely to the direction of the Act by considering what order does, as this does, and what order does not, bear appropriate relation to the policies of the Act. Cf. National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337. Of course, Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6, dealt with a different situation, and its holding remains undisturbed. 8 It is urged, however, that no evidence in this record supports this back pay order; that the Board's formula and the reasons it assigned for adopting it do not rest on data which the Board has derived in the course of the proceedings before us. But in devising a remedy the Board is not confined to the record of a particular proceeding. 'Cumulative experience' begets understanding and insight by which judgments not objectively demonstrable are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process. '(T)he relation of remedy to policy is peculiarly a matter for administrative competence * * *.' Phelps Dodge Corp. v. National Labor Relations Board, supra, 313 U.S., at page 194, 61 S.Ct. at page 852. That competence could not be exercised if in fashioning remedies the administrative agency were restricted to considering only what was before it in a single proceeding. 9 This is not to say that the Board may apply a remedy it has worked out on the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act. The Company in this case maintains that it operates a seasonal business, that its employees may earn three times as much in the first and fourth quarters of a year as in the second and third, and that a quarterly calculation of back pay would in this context be obviously unjust. The Board suggests that it will be time enough to deal with such special facts in this case if the Board and the Company cannot agree on the fair application of the Woolworth formula after the order is sustained. But in case of such disagreement, the Company can be heard as of right on the issue it now raises only in the course of contempt proceedings and at the risk involved in them. We do not think contempt proceedings are appropriate for the settlement of such an issue. Phelps Dodge Corp. v. National Labor Relations Board, supra, 313 U.S. at page 200, 61 S.Ct. 855. Indeed, the Board's pre-Woolworth formula was adapted to varying circumstances as a result of proceedings had before the Board prior to the issuance of orders. See, e.g., Crossett Lumber Company, 8 N.L.R.B. 440, 496—498; Gullett Gin Company, Inc., 83 N.L.R.B. 1, 2, n. 4, enforced sub nom. National Labor Relations Board v. Gullett Gin Co., Inc., supra. We assume that the Woolworth formula will be applied in like manner. 10 In any event, this aspect of the problem is not now properly here. The Company never made before the Board the objection it now bases on the seasonal nature of its business. Section 10(e) of the Act, 61 Stat. 136, 147, 148, 29 U.S.C. (Supp. IV) § 160(e), 29 U.S.C.A. § 160(e), provides: 'No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.' In its Exception XXII to the Intermediate Report of the Trial Examiner, the Company objected that the recommendations as to the remedy were contrary to, and unsupported by, the evidence and contrary to law. This is not adequate notice that the Company intends to press the specific issue it now raises. Marshall Field & Co. v. National Labor Relations Board, 318 U.S. 253, 63 S.Ct. 585, 87 L.Ed. 744. The Company did not urge this issue either before the Board or in the Court of Appeals. No extraordinary circumstances are present such as would justify permitting the issue to be raised here for the first time. 11 The Company contends, finally, that though it might have been within the authority of the Board to devise the Woolworth formula under the language of the National Labor Relations Act, the fact that that language was reenacted while the Board adhered to its pre-Woolworth formula has deprived the Board of power to depart from the latter. We are told that Congress studied with unusual care the case law which had developed under the statute Congress was revising and reenacting by the Labor Management Relations Act, and that it adopted new language whenever it desired results other than the ones reached by the cases. We are cited to National Labor Relations Board v. Gullett Gin Co., supra, and asked to conclude as a general proposition that whenever Congress reenacted without change provisions of the National Labor Relations Act it thereby froze administrative decisions rendered under those provisions. Gullett Gin carries no such generalization. Having held that the Board's practice of failing to deduct unemployment compensation payments in the calculation of back pay awards did not go beyond its powers, we said in that case that our holding was supported by the fact that Congress had reenacted the relevant part of § 10(c) of the National Labor Relations Act with what we took to be notice of this practice. We thought Congress could be said to have agreed that the Board was acting within the authority Congress meant it to have. 12 Assuming Congress was aware of the Board's pre-Woolworth practice of calculating back pay on the basis of the entire period from discharge to offer of reinstatement, we could say here, as we did in Gullett Gin, that Congress by its reenactment indicated its agreement that the Board's practice was authorized. That leads us nowhere on the present issue, though it is only this far that what we said in Gullett Gin can lead us. In that case as here, again assuming notice, if Congress was satisfied that the Board was acting within its powers, the thing for it to do was what it did reenact without change. In that case as here-though, of course, we had no occasion to say so in that case—if Congress had been more than satisfied with the Board's practice, if it had wanted to be certain that the Board would not in future profit by its experience, it would have had to do more than it did; it would have had to change the language of the statute so as to take from the Board the discretionary power to mould remedies suited to practical needs which we had declared the Board to have and which the Board was asserting and exercising. We cannot infer an intent to withdraw the grant of such power from what is at most a silent approval of special exercises of it. 13 We hold that the Board's order is to be enforced. 14 Reversed. 15 Mr. Justice DOUGLAS, dissenting. 16 I agree that the Board has the power to use the Woolworth formula in computing back pay awards. But I do not think that its application in every case, regardless of the circumstances, is in accord with the policy of the Act. In the usual case computation of back pay awards on a quarterly basis will serve the purpose of making the employee whole; and it may even be necessary to effectuate the remedy of reinstatement. On the other hand the use of the formula may in some cases produce an inequitable result. 17 Where, as here, an employer's business fluctuates, the employee's income will not be constant. He will earn more in one month than the next, more in one quarter than the next. Seasonal variations in the business may result in a high total income for one quarter and a low total for the next. A discharged employee, who secures other employment at a normal and constant rate of income, may achieve a yearly rate of pay substantially equal to that of his regular job. That apparently is this case. If, therefore, back pay is computed in this case on a quarterly basis, the employee will probably receive an award in excess of the amount of income he would have earned had he not been discharged. For the quarter during which he would have earned a large amount, he would be awarded the difference between that amount and the lower amount he earned at the outside employment. For a quarter during which his income would have been low he would receive no back pay, provided his outside employment yielded him more than his old job. The net result will probably be that this employee will receive a total amount of earned income, plus back pay, which exceeds what he would have earned at his regular job. Such a result is both inequitable and unwarranted. The Board should not be allowed to use this formula for back pay when in a given case it glaringly works an injustice. There are exceptions to most general rules; and the Board should be the guardian of the exceptions, as well as the formula itself. 18 Mr. Justice MINTON, with whom THE CHIEF JUSTICE joins, dissenting. 19 It seems to us that we enter a 'bog of logomachy' when we start to retract what we plainly said twelve years ago in Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6, and reaffirmed as late as 1951 in National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337. The statute was the same then as now. 20 In the Republic Steel case, the Board had ordered the company to deduct from the back pay due wrongfully discharged employees the amounts they had received on 'work relief' projects and to pay the amounts so deducted to the United States Government. On review only of the question of the payment of these amounts to the Government, this Court held that there was no authority for the payment to the Government of the sums the employees had earned on work relief. Such payment to the Government had nothing to do with making the employees whole and only punished the employer. 21 In construing the pertinent provisions of the statute in this case, the Court said: 22 '(The Board) can direct the employer to bargain with those who appear to be the chosen representatives of the employees and it can require that such employees as have been discharged in violation of the Act be reinstated with back pay. All these measures relate to the protection of the employees and the redress of their grievances, not to the redress of any supposed public injury after the employees have been made secure in their right of collective bargaining and have been made whole. 23 'As the sole basis for the claim of authority to go further and to demand payments to governments, the Board relies on the language of Section 10(c) which provides that if upon evidence the Board finds that the person against whom the complaint is lodged has engaged in an unfair labor practice, the Board shall issue an order—'requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act'. 24 'This language should be construed in harmony with the spirit and remedial purposes of the Act. We do not think that Congress intended to vest in the Board a virtually unlimited discretion to devise punitive measures, and thus to prescribe penalties or fines which the Board may think would effectuate the policies of the Act. We have said that 'this authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order'. We have said that the power to command affirmative action is remedial, not punitive. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 235, 236, 59 S.Ct. 206, 219, 83 L.Ed. 126. see, also, National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 267, 268, 58 S.Ct. 571, 574, 575, 82 L.Ed. 831. We adhere to that construction.' 311 U.S. 7, 11—12, 61 S.Ct. 79. 25 As we understand the decisions of this Court up to now, they have all held that the power of the Board to effectuate the policies of the Act is remedial and is for the purpose of making the employee whole and not of punishing the employer. It is conceded and cannot be denied that the rule heretofore applied by the Board in calculating back pay does not fail to make the employee whole. 26 The rule undoubtedly derives from the common-law rule of damages for the breach by the employer of a contract of employment. The measure of damages is what an employee would have earned if he had not been wrongfully discharged, less what he did earn during the period of the breach. American Trading Co. v. Steele, 9 Cir., 274 F. 774, 782; 5 Williston, Contracts (rev. ed. 1937), § 1358; McCormick on Damages (1935) §§ 158, 160. 27 By the quarterly calculation approved by the Court in the instant case, not only may a wrongfully discharged employee often receive as back pay a greater amount than he would have received had he worked at his regular job, but the employer must pay more than he would have had to pay if he had had the employee's services during the period. Thus, both of the avowed purposes of the rule which this Court has held must guide the Board in allowing back pay have been violated, namely, the employee is made more than whole, and the employer has accordingly been penalized. 28 The employees here were not employed or paid on a quarterly basis. The statute does not require that they be reimbursed on a quarterly basis. The statute as interpreted by this Court requires the employees to be made whole. This rule, as heretofore applied, will always do that. The employee is entitled to no more, the employer to no less. 29 This Court having laid down this rule, the Board having consistently applied it for over twelve years, and Congress having considered and completely overhauled the Act in 1947 without changing this provision of the statute with its long interpretation, we think it has become part of the administrative practice that Congress should change if it is to be changed. Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 114, 59 S.Ct. 423, 425, 83 L.Ed. 536; Taft v. Commissioner, 304 U.S. 351, 357, 58 S.Ct. 891, 894, 82 L.Ed. 1393; Hartley v. Commissioner, 295 U.S. 216, 220, 55 S.Ct. 756, 757, 79 L.Ed. 1399; Stairs v. Peaslee, 18 How. 521, 526, 15 L.Ed. 474.
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344 U.S. 357 73 S.Ct. 293 97 L.Ed. 387 EDELMANv.PEOPLE OF STATE OF CALIFORNIA. No. 85. Argued Nov. 19, 1952. Decided Jan. 12, 1953. Mr. Emanuel Redfield, New York City, for petitioner. Mr. Philip E. Grey, Los Angeles, Cal., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 Petitioner stands convicted under § 647(5) of the Penal Code of California, which provides in relevant part that 'Every * * * dissolute person * * * Is a vagrant, and is punishable by a fine of not exceeding five hundred dollars ($500), or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.' The conviction was affirmed by the Appellate Department of the Los Angeles County Superior Court in an order which recited that the appeal had been submitted without argument. A motion to recall the remittitur and vacate the judgment of the appellate court was denied without opinion after a full hearing before three judges. We granted certiorari because of serious constitutional questions raised as to the validity of the vagrancy statute and its application to the petitioner. 343 U.S. 955, 72 S.Ct. 1054. However, on oral argument, doubts arose as to whether the federal questions were properly presented by the record. Accordingly, it is necessary at the outset to determine whether we have jurisdiction in this case. 2 Petitioner contends, first, that his conviction violates the Due Process Clause of the Fourteenth Amendment because the vagrancy statute is vague, indefinite and uncertain. The record indicates that this defense was not raised on trial but was presented for the first time as the fifth of petitioner's grounds of appeal, stated as follows: '5. Vagrancy statute is unconstitutional because vague and indefinite.' 3 It is clear that this Court is without power to decide whether constitutional rights have been violated when the federal questions are not seasonably raised in accordance with the requirements of state law. Hulbert v. City of Chicago, 1906, 202 U.S. 275, 26 S.Ct. 617, 50 L.Ed. 1026; Mutual Life Ins. Co. v. McGrew, 1903, 188 U.S. 291, 308, 23 S.Ct. 375, 378, 47 L.Ed. 480. Noncompliance with such local law can thus be an adequate state ground for a decision below. Aside from state law regarding the scope of review in cases such as this one, we note that California permits affirmance in criminal cases where the appellant fails to appear.1 It follows that the question whether the vagrancy statute is invalid under the Fourteenth Amendment is not properly before us. 4 The argument that petitioner's rights under the Equal Protection Clause of the Fourteenth Amendment were infringed by discriminatory law enforcement merits only brief comment. The evidence adduced on trial showed at most that the vagrancy statute is not used by the Los Angeles authorities in all of the cases in which it might be applicable. Doubtless recognizing the necessity of showing systematic or intentional discrimination, petitioner made an offer of proof phrased as follows, 'I want to show by the police records that there are thousands and thousands of individuals in this city that are walking around that have committed many more offenses than the defendant that have never been charged with vagrancy.' This offer was made in connection with a subpoena addressed to the local police records section. On motion of the city attorney the subpoena was quashed on the ground that the accompanying affidavit did not comply with the requirements of state law. Since California law determined this action, there is no federal question preserved for review in this aspect of the case. Hedgebeth v. State of North Carolina, 1948, 334 U.S. 806, 68 S.Ct. 1185, 92 L.Ed. 1739. 5 Petitioner urges, finally, that he was deprived of notice and opportunity to have a hearing in the appellate court. A careful study of the record discloses these facts: On December 13, 1949, one day after sentence was imposed, the attorney who represented petitioner during the nine-day trial in Los Angeles Municipal Court filed written notice of appeal in that court. An application for substitution of attorneys was there filed and granted on February 7, 1950. The substituted attorney thereafter appeared in the trial court at hearings on the settlement of the statement on appeal. Preparation of that statement was a lengthy process, not concluded until June 18, 1951, when it was allowed and settled in final form by the trial judge.2 6 After the Appellate Department affirmed the conviction, petitioner filed a motion to 'Recall the Remittitur and to Vacate the Judgment' of the Appellate Department on the ground that its judgment 'was occasion(ed) by the inadvertence, and mistake of fact of the defendant and of the clerk of the above entitled court, and on the incomplete presentation of all the facts and law by the defendant * * *.' In a supporting affidavit, petitioner's original attorney stated that he received notice that the appeal had been set for argument; that he then went to the office of the Appellate Department clerk and advised the person attending the desk that the substituted attorney was the proper person to notify, and was assured that petitioner's then counsel would be notified of the date of the hearing. Substituted counsel filed an affidavit stating that he had not received such notice.3 7 The motion to recall the remittitur and vacate the judgment of the Appellate Department asserted no deprivation of any federal constitutional right. Further, the motion sought what, under California law, is an extraordinary remedy, not available where the court had 'jurisdiction to render the judgment complained of and it does not affirmatively appear that it was the result of fraud, imposition or misapprehension of facts'. People v. Stone, 1949, 93 Cal.App.2d 858, 861, 210 P.2d 78, 80, and cases there cited; 23 Calif.L.Rev. 354.4 Respondent has also suggested that state habeas corpus was available to petitioner to test the constitutionality of his restraint. This is borne out by In re Bell, 1942, 19 Cal.2d 488, 122 P.2d 22, in which the state supreme court decided that California habeas corpus may be used to test the constitutionality of a statute under which the applicant has been convicted. The writ is, in fact, there stated to be the only remedy available for this purpose where the applicant has exhausted his remedy by appeal. Under California law, habeas corpus can also be used to raise other constitutional objections to criminal proceedings, such as deprivation of right to counsel. In re Bell, supra, 19 Cal.2d at page 501, 122 P.2d 22. The denial of petitioner's motion, therefore, rested on an adequate state ground, his choice of the wrong remedy under local law. Woods v. Nierstheimer, 1946, 328 U.S. 211, 214, 66 S.Ct. 996, 998, 90 L.Ed. 1177. This is not a case in which there is serious doubt about the nature of the ground on which the decision below rested. Cf. State Tax Commission v. Van Cott, 1939, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950; State of Minnesota v. National Tea Co., 1940, 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920; Herb v. Pitcairn, 1945, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789. We are thus without power to decide petitioner's claims on the merits, whatever may be their appeal. The writ was improvidently granted and must be dismissed. Stembridge v. State of Georgia, 1952, 343 U.S. 541, 72 S.Ct. 834. It is so ordered. 8 Writ dismissed. 9 Mr. Justice JACKSON concurs except that he thinks it is not material whether California will grant habeas corpus in this case. True, the petitioner's original appeal to the California court sought to raise a federal question. That was not passed upon because the appeal was dismissed for default. Whether the default should be considered excusable by any court is left highly in doubt by the record. At all events, in asking relief from it there was no claim that to take a default under such circumstances is forbidden to a state court by the Constitution of the United States, and such a claim would be frivolous if made. Hence, the petitioner is out of court for reasons of state law and practice, and the writ of certiorari should be dismissed. 10 Mr. Justice BLACK with whom Mr. Justice DOUGLAS concurs, dissenting. 11 The petitioner was convicted of 'vagrancy' in the Municipal Court of Los Angeles. He was given a 90-day jail sentence. The conviction for vagrancy was based primarily on what he had said in public speeches made in a Los Angeles park. He appealed to the Appellate Department of the Superior Court which was the highest court in California in which he could obtain review. One of a number of grounds of appeal was that the vagrancy statute was unconstitutional because vague and indefinite. The rules of the California appellate court specifically require that an appellant or his attorney of record shall be mailed notice of the date on which his appeal will be heard. California admits that no such notice was given petitioner or his counsel of record on appeal and that neither knew the case was set for hearing. As a result neither was present when the case was called in the appellate court. Consequently that court affirmed the jail sentence by default without argument or consideration of the merits of the conviction or the constitutionality of the vagrancy statute. Immediately after discovery of this default affirmance petitioner moved to vacate the action. With full knowledge of all the foregoing facts, the appellate court denied the motion. Petitioner has thus had his constitutional contentions rejected and his conviction affirmed without notice and an opportunity to be heard through himself or counsel. In California, the right of appeal 'is guaranteed by the Constitution to the prisoner and is as sacred as the right of trial by jury. It is one of the means the law has provided to determine the question of his guilt or innocence.' Ex parte Hoge, 48 Cal. 3, 6; In re Alboria, 95 Cal.App. 42, 50—51, 272 P. 321. Under these circumstances I agree with petitioner that refusal to give him or his counsel an opportunity to be heard in the appellate court denied him the due process of law guaranteed by the Fourteenth Amendment. See In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682; Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644; Powell v. State of Alabama, 287 U.S. 45, 68,1 53 S.Ct. 55, 63, 77 L.Ed. 158. Such a denial of due process cannot be justified by the state on any 'adequate non-federal ground.' For this reason I would not dismiss the certiorari but would reverse or vacate the appellate court's judgment. 12 The Court rests its dismissed on a belief that the petitioner can still test the validity of his conviction in a habeas corpus proceeding in the California state courts. And the Court's belief as to availability of a state remedy is buttressed by a presumption that a state will not deny a remedy for deprivation of a constitutional right such as here alleged. Mooney v. Holohan, Warden, 294 U.S. 103, 113, 55 S.Ct. 340, 342, 79 L.Ed. 791. Moreover, should California refuse to grant petitioner a remedy to test the constitutionality of the Vagrancy Act, he could then seek relief in a United States district court. See Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. But my doubt about the availability of an adequate state remedy leads me to conclude that the wiser course here would be to vacate the appellate court's judgment for a clarification of the bases of its action. See State Tax Commission v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950; cf. Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789. For even superficial examination of the California vagrancy statute and petitioner's trial under it will reveal the gravity of the constitutional questions which petitioner urges and which the appellate court left unconsidered and undecided. 13 Subsection 5 of § 647 of the Penal Code of California provides that 'Every idle, or lewd, or dissolute person, or associate of known thieves * * *' is a vagrant, punishable by fine of not more than $500 or by imprisonment of not more than six months, or both.2 Petitioner was charged with and convicted only of being a 'dissolute' person. The ambiguity and consequent broad reach of this crime of 'dissoluteness' is patent. The trial court's efforts to reduce the ambiguity greatly increased it. The judge told the jury that petitioner was not accused of 'any violation of any particular act' but with being a person of 'a certain status' or 'in a certain condition.' His 'character' alone was involved, since 'vagrancy is a status or a condition and it is not an act.' Petitioner was therefore to be tried for a subjective 'status,' not the easiest thing in the world to prove or disprove. And petitioner's difficulty was not made easier by these additional statements to the jury: 14 'Vagrancy is a continuing offense. It differs from most other offenses in the fact that it is chronic rather than acute; that it continues after it is complete and subjects the offender to arrest at any time before he reforms. One is guilty of being a vagrant at any time and place where he is found, so long as the character remains unchanged, although then and there innocent of any act demonstrating his character. * * * His character, as I said before, is the ultimate question for you to decide.' 15 The dictionary definition of dissolute given to the jury by the court described a crime of such nebulous amplitude that no person could know how to defend himself. The court said: 16 'Now, dissolute is defined as 'loosed from restraint, unashamed, lawless, loose in morals and conduct, recklessly abandoned to sensual pleasures, profligate, wanton, lewd, debauched.' Now, the word 'dissolute,' as you see from this definition, covers many acts not necessarily confined to immorality. Other laxness and looseness and lawlessness may amount to dissoluteness.' 17 During a nine-day trial the jury heard a number of witnesses who patently did not like what petitioner said in the many speeches he had been making in the park. There seems to be no doubt that his speeches chiefly involved political or economic questions and included attacks on the local police force. One witness who testified that petitioner had publicly accused him of being a thief also swore that he had heard petitioner advocate 'force and violence, stating that a change could not be brought about except by bullets.' Other hostile witnesses testified to his use of intemperate language. A policeman swore that petitioner had prophesied that he 'would not be given a fair trial'—a prophecy which I fear this record viewed as a whole does not entirely refute. There was also evidence that petitioner had solicited funds to aid him in carrying on his publicity work, and to help pay for his defense in numerous cases that were instituted against him in the municipal court. In one of these cases he had been charged with defacing a park bench of thick concrete by standing on it to make a speech. 18 It would seem a matter of supererogation to argue that the provision of this vagrancy statute on its face and as enforced against petitioner is too vague to meet the safeguarding standards of due process of law in this country. This would be true even were there no free speech question involved. And in that field we have said, 19 'It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment.' Winters v. People of State of New York, 333 U.S. 507, 509, 68 S.Ct. 665, 667, 92 L.Ed. 840. 20 The free speech question was so obviously involved in this vagrancy prosecution that the court charged the jury at length about free speech. He even submitted to them the question whether petitioner's speech constituted 'a clear and present danger. * * *' 21 I adhere to the view that courts should be astute to examine and strike down dragnet legislation used to abridge public discussion of 'views on political, social or economic questions.' Schneider v. State of New Jersey, 308 U.S. 147, 161, 163, 60 S.Ct. 146, 150, 151, 152, 84 L.Ed. 155. 1 See People v. Garza, 1927, 86 Cal.App. 97, 260 P. 390; Rule 8, Rules on Appeal from Municipal Courts and Inferior Courts in Criminal Cases, as amended to January 6, 1947; Deering's Cal. Penal Code, 1949, § 1253; People v. Sukovitzen, 1945, 67 Cal.App.2d 901, 155 P.2d 406. To the same effect, Dowd v. United States, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215. 2 Apparently the statement was agreed upon some time before June 18, judging from the docket entry of November 6, 1950, 'Defendant's Counsel to engross Statement on Appeal,' and an affidavit dated March 7, 1951, showing service of the engrossed statement on substituted counsel. 3 Rule 3(b) of Revised Appellate Department Rules provides, in part, that 'Failure of the clerk to mail any such notice (of hearing) shall not affect the jurisdiction of the Appellate Department.' 4 See People v. McDermott, 1893, 97 Cal. 247, 32 P. 7, in which a motion to recall the remittitur of the State Supreme Court was denied, clearly on state grounds, under circumstances similar to those in the instant case. 1 In Cochran v. State of Kansas, 316 U.S. 255, 258, 62 S.Ct. 1068, 1070, 86 L.Ed. 1453, we held that Kansas denied Cochran equal protection of the laws in refusing him privileges of appeal it afforded to others. 2 A mere reading of the California vagrancy statute is sufficient to show its similarity to a New Jersey law held invalid for vagueness and ambiguity in Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888.
89
344 U.S. 367 73 S.Ct. 340 97 L.Ed. 395 SOUTH BUFFALO RY. CO.v.AHERN et al. No. 179. Argued Dec. 17, 1952. Decided Jan. 19, 1953. Mr. Albert R. Connelly, New York City (Messrs. Hoyt A. Moore, Joseph W. Marlow and Cravath, Swaine & Moore, New York City, on the brief), for appellant. Mr. Roy Wiedersum, Asst. Atty. Gen. of New York (Messrs. Nathaniel L. Goldstein, Atty. Gen., Wendell P. Brown, Sol. Gen., Albany, N.Y., and Daniel Polansky, Asst. Atty. Gen., on the brief), for appellee New York StateWorkmen's Compensation Board. Mr. Justice CLARK delivered the opinion of the Court. 1 Disability awards by the New York Workmen's Compensation Board to an interstate railroad employee precipitate this attack on § 113 of that state's Workmen's Compensation Law, McK.Consol.Laws, § 67, as unconstitutionally conflicting with the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. While employed as a switchman by the appellant Railway, Thomas J. Ahern in July 1944 suffered a coronary occlusion as a result of unusual physical exertion in attempting to 'throw a stuck switch' in the Railway's Lackawanna, New York, yards.1 On January 15, 1945, he filed a claim with the New York Workmen's Compensation Board, asserting disability caused by injuries sustained in the regular course of his employment. The Railway controverted the claim solely on the grounds that his injuries were not in fact accidental, and that his disability was not causally related to the injuries alleged.2 A referee, after hearing evidence, resolved these issues in the claimant's favor and in September 1945 awarded him compensation at the rate of $28 per week from the date of the accident. The Board denied the Railway's application for review and affirmed the referee's determination. In 1946 and the year following, the Board entered two further temporary disability awards. A self-insured employer, appellant in accordance with the Board's orders and without appeal to the courts of the state continued biweekly payments to Ahern until December 20, 1948. On January 3, 1949, Ahern died of his heart condition. At a subsequent hearing held shortly thereafter to determine a final disability award, the widow, appellee here, was requested to file a death claim. At that point appellant for the first time disputed the Board's jurisdiction over the subject matter of the proceeding and offered to introduce proof in support.3 The referee rejected appellant's proffer and rendered a disability award for the two weeks preceding Ahern's death. Over appellant's contention that the claimant was employed 'in interstate commerce' so that the applicability of the Federal Employers' Liability Act deprived the Workmen's Compensation Board of jurisdiction, the Board denied a petition for review.4 The Appellate Division of the state Supreme Court upheld the award, and the Court of Appeals affirmed.5 This decision by the highest court of the state invoked § 113 of New York's Workmen's Compensation Law which in relevant part provides that awards 'may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty or interstate commerce rights and remedies * * *.' (Emphasis added.)6 Appellant's serious attacks on the constitutionality of the statute as here applied and related problems important to the administration of the Federal Employers' Liability Act prompted us to note probable jurisdiction of this case. 2 Collision of New York's statute with the Federal Employers' Liability Act is the crux of appellant's constitutional contentions. All agree that the injured employee, had he pursued his federal remedy, would have met the 'interstate commerce' requirements of that Act.7 But we are told that, under the New York Court of Appeals' decision, § 113 of the state Workmen's Compensation Law may translate the mere payment and acceptance of a single interlocutory compensation award into an irrevocable agreement by employer and employee to forsake their federal rights and submit their controversy to the state Board, a tribunal not only without jurisdiction but whose rules of liability clash with the uniform scheme intended by Congress in the Federal Employers' Liability Act. That being so, appellant urges, the New York Court of Appeals' construction of § 113 unconstitutionally authorizes the Workmen's Compensation Board to invade a field foreclosed by governing federal legilation. 3 We do not think that the Court of Appeals roved so far afield. Rather than coin sweeping generalities, the court held that New York permitted the Board to render compensatory awards for employees engaged in interstate commerce only if the parties voluntarily had so agreed and 'if there has been no overreaching or fraud'.8 Accordingly, the court scrupulously traced the significant factual elements in this case: Appellant from the outset was represented by able counsel well versed in the nature of its liabilities toward injured employees; it utilized the Board's administrative machinery at several hearings resulting in at least four separate awards; it made payments for four and a half years in accordance with the Board's directions, choosing not to contest the authority of the Board; it sought no judicial relief from any award save the last, when the employee's remedy under the Federal Employers' Liability Act had lapsed. In view of these facts the court concluded that manifestly the parties had agreed to invoke § 113, a purely 'per missive statute,'9 thereby empowering the Workmen's Compensation Board to act. And, in effect, appellant's course of conduct over the years estopped it from now asserting a flaw in the bargain: 'we can conceive of no sound reason why the employer should be permitted to urge his Federal rights at this late date.'10 4 We do not doubt that the Federal Employers' Liability Act, supplanting a patchwork of state legislation with a nationwide uniform system of liberal remedial rules, displaces any state law trenching on the province of the Act. State legislatures, for example, may not intrude into the federal Act's interstate commerce perimeter to destroy uniformity by arbitrarily presuming the renunciation of rights which the Act confers, or by compelling parties to elect between their federal remedies and an alternative state compensation plan. Erie R. Co. v. Winfield, 1917, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057. The New York Court of Appeals, however, manifested meticulous care to avoid collision; it construed § 113 of the Workmen's Compensation Law as a mere legislative authorization, permitting the Board to effectuate private agreements for compromising a federal controversy by resort to an impartial local umpire—'that is all that section 113 of the Workmen's Compensation Law purports to accomplish.'11 The difference between coercion and permission is decisive; New York's jurisdictional grant, so confined, does not transgress. 5 To be sure, peculiarities of local law may not gnaw at rights rooted in federal legislation. American Railway Express Co. v. Levee, 1923, 263 U.S. 19, 21, 44 S.Ct. 11, 12, 68 L.Ed. 140; Davis v. Wechsler, 1923, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143. Untainted by fraud or overreaching, full and fair compromises of FELA claims do not clash with the policy of the Act. Callen v. Pennsylvania R. Co., 1948, 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242. The validity of such an agreement, however, raises a federal question to be resolved by federal law. Dice v. Akron, C. & Y.R. Co., 1952, 342 U.S. 359, 72 S.Ct. 312; cf. Garrett v. Moore-McCormack Co., 1942, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239.12 And, mindful of the benevolent aims of the Act, we have jealously scrutinized private arrangements for the bartering away of federal rights. Ibid.; Boyd v. Grand Trunk Western R. Co., 1949, 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55; Duncan v. Thompson, 1942, 315 U.S. 1, 62 S.Ct. 422, 86 L.Ed. 575.13 Here, however, whether motivated by charity, dislike of litigation, or trial strategy, appellant made payments until the statute of limitations barred the employee's federal claim. Fully advised of its legal rights it submitted the controversy to the Board. The New York Court of Appeals viewed these circumstances as estopping appellant from the assertion of so long delayed a change of heart. No tenet of federal law compels otherwise. 6 Affirmed. 7 Mr. Justice DOUGLAS, dissenting. 8 This judgment cannot be sustained on the ground that the parties were merely using the good offices of the New York Workmen's Compensation Board to compromise a claim under the Federal Employers' Liability Act. No such claim was ever asserted. The claim made charged no negligence. And no such issue was ever tendered. , yet without negligence, there is no liability under the federal Act. Moreover, this does not appear to be a situation where a claim, contested under the federal Act, is compromised, the standards of a state Act being used as the basis for the settlement. Cf. Bay State Dredging & Contracting Co. v. Porter, 1 Cir., 153 F.2d 827; Heagney v. Brooklyn Eastern District Terminal, 2 Cir., 190 F.2d 976. This claim seems to be founded on 'accident' rather than on 'negligence.' And the claimant apparently sought relief under the New York Act because he had none under the federal Act. 9 But the judgment cannot be affirmed as a settlement of litigation under the New York Act. The Court held in New York Central R. Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045, that the remedy for personal injuries suffered by employees of interstate railroad carriers is regulated both inclusively and exclusively by the federal Act, that no room is left for state regulation, that even though the injury on which the claim is based is not attributable to negligence and therefore may not be compensated for under the federal Act, nevertheless a state may not afford a remedy. The Court held that the federal Act supplanted the state acts and established one exclusive standard of liability for interstate railroad carriers. And see Erie R. Co. v. Winfield, 244 U.S. 170, 172, 37 S.Ct. 556, 557, 61 L.Ed. 1057. 10 Therefore, by reason of the Supremacy Clause, a state has no power to adopt a different standard of liability for these personal injuries. It may neither force nor permit the carriers or the employees to settle these personal injury claims on a different basis than the federal Act supplies. Since the New York legislature is constitutionally barred from vesting its Workmen's Compensation Board and its courts with jurisdiction over the claim, I fail to see how they can acquire jurisdiction through consent of the parties. No waiver, consent, or estoppel should be allowed to enlarge the state domain at the expense of the overriding federal policy. Cf. United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 831, 80 L.Ed. 1263. 11 Mr. Justice Brandeis dissented in New York Central R. Co. v. Winfield, 244 U.S. 147, 154, 37 S.Ct. 546, 549, 61 L.Ed. 1045, in an opinion in which Mr. Justice Clarke concurred. Under his view the federal Act does not preclude a state from adding to a carrier's liability for negligence, a liability based on accident. His view is the one I would follow; and I would join four in overruling the Winfield cases. But they are still the law; and their holdings are in my view quite inconsistent with what the Court now does. 1 R. 4. 2 R. 33, 37. In its 'Notice to the Industrial Commissioner That Claim Will Be Controverted,' appellant additionally reserved 'the right to controvert for such other reasons as may later appear.' R. 33. The New York courts attached no significance to that reservation. 3 R. 88—91. 4 The Board found, in part, that appellant 'by its conduct and the effect thereof on the rights of the deceased claimant * * * is now estopped from pleading the defense of the Federal Employer's Liability Act.' R. 5. 5 1952, 303 N.Y. 545, 104 N.E.2d 898, affirming 1950, 277 App.Div. 1067, 100 N.Y.S.2d 639. 6 'The provisions of this chapter shall apply to employers and employees engaged in intrastate, and also interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, provided that awards according to the provisions of this chapter may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty or interstate commerce rights and remedies, and the state insurance fund or other insurance carrier may assume liability for the payment of such awards under this chapter.' McKinney's N.Y. Laws, Workmen's Compensation Law, § 113. 7 'Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.' 45 U.S.C. § 51, 45 U.S.C.A. § 51. 8 303 N.Y. at page 555, 104 N.E.2d at page 904. 9 303 N.Y. at page 555, 104 N.E.2d at page 903. 10 303 N.Y. at page 564, 104 N.E.2d at page 909. 11 303 N.Y. at page 555, 104 N.E.2d at page 904. 12 See also Heagney v. Brooklyn Eastern District Terminal, 2 Cir., 1951, 190 F.2d 976, 978; Ricketts v. Pennsylvania R. Co., 2 Cir., 1946, 153 F.2d 757, 759, 164 A.L.R. 387. We need not now decide whether the systematic solicitation of such agreements would run afoul of § 5 of the Federal Employers' Liability Act. 'Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void * * *.' 45 U.S.C. § 55, 45 U.S.C.A. § 55. 13 See Purvis v. Pennsylvania R. Co., 3 Cir., 1952, 198 F.2d 631.
910
344 U.S. 375 73 S.Ct. 375 97 L.Ed. 407 NATIONAL LABOR RELATIONS BOARDv.DANT et al. No. 97. Argued Dec. 15, 1952. Decided Feb. 2, 1953. Mr. David P. Findling, Washington, D.C., for petitioner. Mr. John T. Casey, Washington, D.C., for respondent. Mr. Justice REED delivered the opinion of the Court. 1 The National Labor Relations Board issued a complaint on March 27, 1950, following a charge filed August 3, 1949, by the International Woodworkers of America, Local 6—7, against respondent, Dant & Russell, Ltd. The charge was filed in accordance with the procedure of the act, § 10(b), and was based on violations of § 8(a)(1) and (3).1 After the usual proceedings, the Board ordered respondent to take appropriate remedial action to correct the charged unfair labor practices. The International Woodworkers Union was and is an affiliate of the Congress of Industrial Organizations. There were on file with the Board at the time the charge was made the non-Communist affidavits executed by the officers of the local union as required by § 9(h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, § 101. Affidavits executed by the officers of the C.I.O. were filed with the Board prior to the issuance of the complaint but subsequent to the filing of the charge. 2 Section 9(h) of the Act provided, at the time of the filing of the charge and the issuance of the complaint, that 3 '* * * No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, no petition under section 9(e)(1) shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless there is on file with the Board an affidavit executed * * * by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate * * * that he is not a member of the Communist Party * * *.'2 4 Respondent challenged the order on the ground that the Board could not issue a valid complaint based on a charge by a union if the charging union was not in compliance with § 9(h) when the charge was filed in spite of the fact that at the time the complaint was issued, the union was in full compliance. In response to this challenge, the Board held that § 9(h) required compliance 'at the time of the issuance of the complaint, rather than at the time of the filing of the charge.' On petition for enforcement, the Court of Appeals for the Ninth Circuit set aside the order on the single ground that, under § 9(h) 'the Board was not empowered to entertain the charge or to issue the complaint or the order.'3 This followed, according to the court, because our decision in National Labor Relations Board v. Highland Park Mfg. Co., 341 U.S. 322, 71 S.Ct. 758, 95 L.Ed. 969, had construed § 9(h) as prohibiting the issuance of any complaint by the Board unless the charging labor organization was in full compliance at the time its charge was filed. 5 We do not think the Highland Park opinion supports the Court of Appeals opinion in the present case. That former opinion, dealing with a charge that the employer violated § 8(a)(5) by refusing to bargain with the bargaining agent of the employees, § 9(a),4 held only that the C.I.O. was a 'national or international labor organization' within the meaning of § 9(h). For that reason the C.I.O. was required to file non-Communist affidavits as a prerequisite to the achievement of full compliance status by its affiliates. There, the C.I.O.'s compliance with § 9(h) occurred almost a year after the complaint had issued. Since compliance subsequent to the issuance of the complaint also occurred in the other decisions relied on by the court below, language in them concerning the institution of proceedings was not directed at charges under § 8(a)(3) and therefore there was no occasion for those courts to analyze § 9(h) to determine its applicability to the present situation.5 6 In respondent's view, and in the view of the Courts of Appeals that have considered this issue, § 9(h) precludes noncomplying unions from filing 'valid' charges, and prohibits the Board from taking any action on a charge filed by a noncomplying union. We do not agree. Section 9(h) prohibited the Board from doing three things. It specifically stated that 'unless' the prerequisite affidavits had been filed, the Board shall not (1) make an 'investigation' as authorized by § 9(c) concerning the representation of employees; (2) entertain a 'petition under section 9(e)(1)', as it then stood; or (3) issue a 'complaint * * * pursuant to a charge made by a labor organization under subsection (b) of section 10'. It does not by its terms preclude either the filing of a charge by a noncomplying labor organization or the entertainment of the charge by the Board. 7 The 'unless' clause limits the issuance of a 'complaint.' It has no specific reference to the phrase 'pursuant to a charge made by a labor organization'. If Congress had intended to enact such a requirement for the filing of the charge, it would have been a simple matter to have stated that 'no charge shall be entertained.'6 We think the purpose of the 'pursuant' phrase is to make it clear that the 'unless' limitation on the issuance of complaints is restricted to charges filed by such labor organizations and does not apply to charges filed by individuals, or by employers against such organizations. The phrase so construed follows the pattern of the first phrase in § 9(h) which applies to proceedings by employees for collective bargaining representation 'raised by a labor organization under subsection (c) of this section'. That there is no such qualifying clause in § 9(h) for the union-shop election clause provision of § 9(e)(1), as it then read, is in accord with this construction, for all petitions for such an election would then have been filed on behalf of a union. 8 The requirements for non-Communist affidavits in § 9(h) make it unlawful for the Board to investigate a petition by a labor organization under § 9(c) for collective bargaining representation. Likewise the absence of such affidavits kept the Board from entertaining a petition for a unionshop election under § 9(e)(1). The careful specification in § 9(h) that these affidavits must be filed before investigation, entertainment or complaint shows that § 9(h) was not directed at the filing of a charge. Such particularity distinguishes between charge and complaint. 9 This has been the position of the Board from the enactment of the Labor Management Relations Act. Section 102.13(b)(2) of the Board's Rules and Regulations, effective August 18, 1948, defines compliance with § 9(h) of the Act in terms of requiring the affidavits to be 'executed contemporaneously with the charge (or petition).'7 This, however, is a direction as to what should be done and is not an interpretation by the Board of the requirement of § 9(h). According to § 102.13(b), the definition of compliance is set down, 'For the purpose of the regulations in this part.' The Board had made it clear in § 101.3 of these Rules that there is a 10-day period of grace given to charging unions to achieve compliance status.8 The Board states it has followed a practice of extending this period upon a proper showing that the union is making a diligent effort to comply.9 An interpretation that the Act permits the filing of a charge prior to compliance with § 9(h) is the same as that made by the Board in an opinion as early as December 16, 1948, In the Matter of Southern Fruit Distributors, 80 N.L.R.B. 1283. That opinion was handed down by the Board before our ruling in the Highland Park case and the position has been maintained, though the Board failed to set out fully in its opinions the reason for its conclusion.10 10 Respondent urges that the above construction of § 9(h) weakens the overall purpose of the section in that it allows the Board to provide noncomplying labor organizations with substantial benefits by the filing of the charge without any assurance of compliance. 11 Phrased differently, the argument is that the benefits of the Act may not flow to a labor organization unless the non-Communist affidavits are on file. We agree with the argument, and believe that it is in accord with our interpretation of § 9(h). Since the remedial processes of the Act to cure practices forbidden by § 8(a)(3) can only be invoked by the issuance of a complaint, we do not see how a noncomplying labor organization can be said to benefit from the fact that it need not be in compliance at the date of the filing of the charge. The filing of a charge, which is subject to dismissal within 10 days under the Board's rule, unless reasonable assurance is given by the filing union that it will comply with the affidavit requirement,11 is of no benefit to the charging union unless it is followed by the issuance of a complaint. Absent the issuance of a complaint, the filing of a charge is a useless act. 12 Another factor militating against the construction of the Act adopted below arises out of the fluid and elective nature of the official personnel of labor unions. As a practical matter, elections of new officers, changes in organizational structures, difficulties and delays in auditing financial statements or in obtaining information with respect to the numerous details which § 9(f) and (g) requires, make compliance at a given moment, or continuous compliance, a matter of happenstance. Under § 9(f) and (g) the filing of union financial and organizational reports is also a condition precedent to the issuance of complaints under subsection (b) of § 10 of the Act. It would seem that the construction of § 9(h) urged by respondent would lead to a like construction of § 9(f) and (g).12 Such normal noncompliance at the time of filing a charge should not work to frustrate the Act's purpose of remedying unfair labor practices committed against unions which do have leadership willing to comply. 13 Finally, respondent makes the argument that its position is supported by the legislative history of § 9(h).13 But in the face of the specific words of the statute, the legislative history does not persuade us. It contains no discussion of the necessity of filing § 9(h) affidavits before filing the charge. The purpose of § 9(h) was to stop the use of the Labor Board by union leaders unwilling to be limited in government by the processes of reason. That purpose was sought through the elimination of such leaders rather than by making difficult the union's compliance with the Act. The legislative comments are to be read in that light. Indeed those comments are so lacking in definitiveness on the point here at issue that both parties suggest that § 9(h) itself best shows the purpose of Congress. 14 We hold that the sought-for congressional intent is found in the language of the Act; and as we have found it, the decision below must be reversed. 15 Reversed. 1 National Labor Relations Act, 29 U.S.C. § 158, 29 U.S.C.A. § 158: '(a) It shall be an unfair labor practice for an employer— '(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title. '(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, * * *.' 29 U.S.C. § 160, 29 U.S.C.A. § 160: '(b) Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board * * * shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board * * *.' 2 Section 9(h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 61 Stat. 146, 29 U.S.C.(Supp. III) § 159(h), 29 U.S.C.A. § 159(h). The clause 'no petition under section 9(e)(1) shall be entertained' was deleted by Act of October 22, 1951, 65 Stat. 601. 3 195 F.2d 299, 300. The Court of Appeals for the Third and Fifth Circuits have taken similar positions where the affidavits were filed prior to the issuance of the complaints in National Labor Relations Board v. Nina Dye Works Co., Inc., 198 F.2d 362; and National Labor Relations Board v. American Thread Co., 198 F.2d 137, respectively. Each of these cases agreed with the analysis and conclusion of the Court of Appeals for the Ninth Circuit in the present case. See judgment of the Court reversing these decisions entered today, 344 U.S. 924, 73 S.Ct. 390. 4 84 N.L.R.B. 744, 745. 5 National Labor Relations Board v. Postex Cotton Mills, 5 Cir., 181 F.2d 919; National Labor Relations Board v. J. I. Case Co., 8 Cir., 189 F.2d 599; National Labor Relations Board v. Clark Shoe Co., 1 Cir., 189 F.2d 731. 6 See S. 655, 83d Cong., 1st Sess., introduced by Senator Taft to amend § 9(h) by forbidding entertainment by the Board of a charge under § 10(b) unless the required affidavits are filed. 7 29 CFR § 102.13: '(b) For the purpose of the regulations in this part, compliance with section 9(h) of the act means in the case of a national or international labor organization, that it has filed with the general counsel in Washington D.C., and in the case of a local labor organization, that any national or international labor organization of which it is an affiliate or constituent body has filed with the general counsel in Washington, D.C., and that the labor organization has filed with the regional director in the region in which the proceeding is pending: '(2) An affidavit by each officer referred to in subparagraph (1) of this paragraph, executed contemporaneously with the charge (or petition) or within the preceding 12-month period, stating that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.' 8 29 CFR § 101.3: '(b) In addition, the labor organization and every national or international labor organization of which it is an affiliate or constituent unit must have complied with section 9(h) of the act as follows: At the time of filing the charge (or petition) or prior thereto, or within a reasonable period not to exceed 10 days thereafter, the national or international labor organization shall have on file with the general counsel in Washington, D.C., and the local labor organization shall have on file with the regional director in the region in which the proceeding is pending, or in which it customarily files cases, a declaration by an authorized agent executed contemporaneously or within the preceding 12-month period listing the titles of all offices of the filing organization and stating the names of the incumbents, if any, in each such office and the date of expiration of each incumbent's term, and an affidavit from each such officer, executed contemporaneously or within the preceding 12-month period, stating that he is not a member of the Communist Party or affiliated with such party and that he does not believe in, and is not a member of nor supports any organization that believes in or teaches the overthrow of the United States Government by force or by any illegal or unconstitutional methods.' 9 Respondent asserts that this practice, which was followed by the Board in this case, contravenes § 3 of the Administrative Procedure Act. That section requires every agency to publish in the Federal Register 'statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal or informal procedures available', and provides that '(n)o person shall in any manner be required to resort to organization or procedure not so published.' 5 U.S.C. § 1002(a), 5 U.S.C.A. § 1002(a). The Board's practice of extending the 10-day period on a proper showing by the labor organization can hardly be called a procedure to which respondent was required to resort. 10 In the Matter of H & H Manufacturing Co., Inc., 87 N.L.R.B. 1373. Compare a contrary position taken by the Third Circuit in National Labor Relations Board v. Nina Dye Works Co., Inc., 198 F.2d 362. 11 N.L.R.B. Rules and Regulations and Statement of Procedure, 29 CFR §§ 101.3 and 102.13. 12 29 U.S.C. § 159, 29 U.S.C.A. § 159: '(f) No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b), of section 160 of this title, unless such labor organization and any national or international labor organization of which such labor organization is an affiliate or constituent unit (A) shall have prior thereto filed with the Secretary of Labor copies of its constitution and bylaws and a report, in such form as the Secretary may prescribe, showing—* * *.' '(g) It shall be the obligation of all labor organizations to file annually with the Secretary of Labor, in such form as the Secretary of Labor may prescribe, reports bringing up to date the information required to be supplied in the initial filing by subsection (f)(A) of this section, and to file with the Secretary of Labor and furnish to its members annually financial reports in the form and manner prescribed in subsection (f)(B) of this section. No labor organization shall be eligible for certification under this section as the representative of any employees, and no complaint shall issue under section 160 of this title with respect to a charge filed by a labor organization unless it can show that it and any national or international labor organization of which it is an affiliate or constituent unit has complied with its obligation under this subsection.' 13 The House Conference Report No. 510, 80th Cong., 1st Sess., p. 46, speaks of the filing of the required data as a condition to the labor organization's receiving 'benefits under the act.' To the same effect see the analysis of the Act at 93 Cong.Rec. 6534. Senator Taft, in analyzing the differences between the Senate bill and the Conference Report, stated: 'Subsection 9(h) of the conference agreement embodies the principle * * * which would have prevented a labor organization from being eligible for certification if any of its * * * officers were members or affiliates of the Communist Party * * *. There was a similar provision in the House bill * * *. In reconciling the two provisions the conferees took into account the fact that representation proceedings might be indefinitely delayed if the Board was required to investigate the character of all the local or national officers as well as the character of the officers of the parent body or federation. The conference agreement provides that no certification shall be made or any complaint issued unless the labor organization in question submits affidavits executed by each of its officers * * * to the effect that they are not members or affiliates' of organizations accepting the doctrine of violence in government. 93 Cong.Rec. 6444. Referring to subsections 9(f) and (g), containing provisions regarding financial reports, similar to those of § 9(h), Senator Taft stated that '(t)he filing of such report is a condition of certification as a bargaining agent under the law, and is also a condition of the right to file any charges under the * * * Act.' 93 Cong.Rec. 3839. Congressman Hartley's remarks were that the section 'prohibits labor organizations from invoking the processes of the act unless all of the officers file affidavits with the board that they are not members of the Communist Party * * *.' 93 Cong.Rec. 6383. In the House Conf.Rep.No.510, 80th Cong., 1st Sess., pp. 51—52, it was stated that the bill which was enacted made several changes with respect to §§ 9(f) and (g). 'First, the filing of the information and reports is made a condition * * * to eligibility for filing petitions for representation and eligibility for making charges.' To the same effect see also the subsequent statement of Congressman Hartley, 'Our New Labor Policy,' at pp. 162—163.
23
344 U.S. 414 73 S.Ct. 369 97 L.Ed. 447 GORDON et al.v.UNITED STATES. No. 182. Argued Dec. 17, 18, 1952. Decided Feb. 2, 1953. Messrs. George F. Callaghan and Maurice J. Walsh, Chicago, Ill., for petitioners. Mr. John R. Wilkins, Washington, D.C., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 Petitioners Gordon and MacLeod were convicted on an indictment of four counts, two charging unlawful possession of goods stolen while in interstate commerce1 and two that defendants caused this property to be further transported in interstate commerce.2 The Court of Appeals affirmed,3 and we granted certiorari limited to questions concerning production and admission of documentary evidence tending to impeach the testimony of a prosecution witness.4 2 The Government proved that film being shipped from Rochester, New York, to Chicago, Illinois, was stolen from a truck in Chicago and that part of it later had been recovered in Detroit. To implicate the two petitioners, it relied principally on one Marshall, who, in Detroit, had pleaded guilty to unlawful possession of the film. Marshall testified that he and a codefendant, Swartz, who died before trial, on several occasions had driven from Detroit to Chicago and back. On each visit they had stopped at petitioner Gordon's Chicago jewelry store. On one trip, according to Marshall, Gordon accompanied them to a garage in that city and there Gordon and a man resembling MacLeod helped to load into into Marshall's car film that was stacked in the garage. A week later, Marshall said, he and Swartz again called on Gordon, when the latter sent them to see 'Ken' at an address which he wrote on a piece of paper. At this address, MacLeod identified himself as 'Ken,' and again the three men loaded film from the garage into Marshall's car. 3 Partial corroboration of Marshall was supplied by a Federal Bureau of Investigation agent, who had been watching the garage. He testified that on the latter occasion he saw Marshall and Swartz drive up to MacLeod's address, whereupon MacLeod removed an old truck from the garage. Later, Swartz and Marshall drove away with film cartons stacked on the back seat of Marshall's car. 4 Both petitioners took the stand and denied complicity in the theft and knowledge that the film was stolen. While their physical movements as recited by them were not materially different from those related by government witnesses, petitioners gave a different and innocent version of the relationship of their acts to the criminal transactions. Gordon testified that the deceased Swartz was a business acquaintance who asked on the first visit if Gordon knew of a garage where a truck could be temporarily stored. Gordon called MacLeod, who was his partner in a rooming-house venture, and told him that he would send two men over who wished to use a garage back of the rooming house. MacLeod testified that he had not known either of the men before they placed a truck in the garage and that, at their request he had helped load film from the truck into Marshall's car merely as a favor. 5 On cross-examination, Marshall admitted that between his apprehension and his final statement to the Government, which implicated petitioners, he had made three or four statements which did not. Petitioners requested the trial judge to order the Government to produce these earlier statements. The request was denied. Marshall also admitted that, one week before he made any statement incriminating petitioners, he had pleaded guilty to unlawful possession of the film in a federal court in Detroit. He was still unsentenced and no date for sentencing had been set, although nine months had elapsed since this plea was received. He denied that he had received any promise of immunity or threats which would influence him to testify as he did. Petitioners then sought to introduce from the transcript of the Detroit proceeding this statement made to Marshall by the federal district judge: 'Very well, the plea of guilty is accepted. Now, I am going to refer your case to the Probation Department for presentence report. I think I should say to you, as I said to your lawyer yesterday when he and Mr. Smith called upon me in chambers yesterday morning, that it seemed to me that if you intended to plead guilty and expected a recommendation for a lenient sentence or for probation from the Probation Department, that it would be essential that you satisfy the Probation Department that you have given the law enforcement authorities all the information concerning the merchandise involved in this proceeding. * * * I am not holding out any promises to you, but I think you would be well advised to tell the probation authorities the whole story even though it might involve others.' This was excluded on the objection that it was immaterial. 6 The trial judge in his charge and the Court of Appeals in its opinion5 recognized that, where, as here, the Government's case may stand or fall on the jury's belief or disbelief of one witness, his credibility is subject to close scrutiny. But the question for this Court is whether rejection of petitioners' two efforts to impeach the credibility of Marshall did not withhold from the jury information necessary to a discriminating appraisal of his trustworthiness to the prejudice of petitioners' substantial rights. The two issues stand on somewhat different grounds. 7 The request by the accused to order production of Marshall's earlier statements was cast in terms of obtaining access to documentary evidence rather than an offer that would require a ruling on its admissibility. But the Government apparently concedes, as we think it must, that if it would have been prejudicial error for the trial judge to exclude these statements, had the defense been able to offer them, it was error not to order their production. The relation of admissibility to production for inspection is by no means settled in the various jurisdictions, but we conclude that the Government does not concede enough. Demands for production and offers in evidence raise related issues but independent ones, and production may sometimes be required though inspection may show that the document could properly be excluded. 8 In the absence of specific legislation, questions of this nature are governed 'by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.'6 Apparently, earlier common law did not permit the accused to require production of such documents.7 Some state jurisdictions still recognize no comprehensive right to see documents in the hands of the prosecution merely because they might aid in the preparation or presentation of the defense.8 We need not consider such broad doctrines in order to resolve this case, which deals with a limited and definite category of documents to which the holdings of this opinion are likewise confined. 9 By proper cross-examination, defense counsel laid a foundation for his demand by showing that the documents were in existence, were in possession of the Government, were made by the Government's witness under examination, were contradictory of his present testimony, and that the contradiction was as to relevant, important and material matters which directly bore on the main issue being tried: the participation of the accused in the crime. The demand was for production of these specific documents and did not propose any broad or blind fishing expedition among documents possessed by the Government on the chance that something impeaching might turn up.9 Nor was this a demand for statements taken from persons or informants not offered as witnesses.10 The Government did not assert any privilege for the documents on grounds of national security, confidential character, public interest, or otherwise. 10 Despite some contrary holdings on which the courts below may have relied, we think their reasoning is outweighed by that of highly respectable authority in state and lower federal courts in support of the view that an accused is entitled to the production of such documents.11 Indeed, we would find it hard to withstand the force of Judge Cooley's observation in a similar situation that 'the state has no interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons.'12 In the light of our reason and experience, the better rule is that upon the foundation that was laid the court should have overruled the objections which the Government advanced and ordered production of the documents. 11 The trial court, of course, had no occasion to rule as to their admissibility, and we find it appropriate to consider that question only because the Government argues that the trial judge, in the exercise of his discretion, might have excluded these prior contradictory statements and since that would not have amounted to reversible error, it was not such to decline their production. We think this misconceives the issue. It is unnecessary to decide whether it would have been reversible error for the trial judge to exclude these statements once they had been produced and inspected.13 For production purposes, it need only appear that the evidence is relevant, competent, and outside of any exclusionary rule; for rarely can the trial judge understandingly exercise his discretion to exclude a document which he has not seen, and no appellate court could rationally say whether the excluding of evidence unknown to the record was error, or, if so, was harmless. The question to be answered on an application for an order to produce is one of admissibility under traditional canons of evidence, and not whether exclusion might be overlooked as harmless error. 12 The Court of Appeals affirmed on the ground that Marshall's admission, on cross-examination, of the implicit contradiction between the documents and his testimony removed the need for resort to the statements and the admission was all the accused were entitled to demand. We cannot agree. We think that an admission that a contradiction is contained in a writing should not bar admission of the document itself in evidence, providing it meets all other requirements of admissibility and no valid claim of privilege is raised against it.14 The elementary wisdom of the best evidence rule rests on the fact that the document is a more reliable, complete and accurate source of information as to its contents and meaning than anyone's description and this is no less true as to the extent and circumstances of a contradiction. We hold that the accused is entitled to the application of that rule, not merely because it will emphasize the contradiction to the jury, but because it will best inform them as to the document's impeaching weight and significance.15 Traditional rules of admissibility prevent opening the door to documents which merely differ on immaterial matters. The alleged contradictions to this witness' testimony relate not to collateral matters but to the very incrimination of petitioners. Except the testimony of this witness be believed, this conviction probably could not have been had. Yet, his first statement was that he got the film from Swartz; his first four statements did not implicate these petitioners and his fifth did so only after the judicial admonition we will later consider. The weight to be given Marshall's implication of the petitioners was decisive. Since, so far as we are now informed by the record, we think the statements should have been admitted, we cannot accept the Government's contention based on a premise that the court was free to exclude them. It was error to deny the application for their production. 13 The second effort to impeach Marshall was to offer parts already quoted from the transcript of proceedings in Detroit. Although Marshall admitted pleading guilty to the offense and that nine months later he was still unsentenced, he denied that he had received either promises or threats. The transcript would have shown the jury that a federal judge, who still retained power to fix his sentence, in discussing Marshall's expectation of a 'recommendation for a lenient sentence or for probation' had urged him to tell all he knew, 'even though it might involve others.' Involvement of others, whom Marshall had not theretofore mentioned, soon followed. We think the jury should have heard this warning of the judge, which was an addition to the matter brought out on cross-examination. The question for them is not what the judge intended by the admonition, nor how we, or even they, construe its meaning. We imply no criticism of it, and he expressly stated that he was holding out no promise. But the question for the jury is what effect they think these words had on the mind and conduct of a prisoner whose plea of guilty put him in large measure in the hands of the speaker. They might have regarded it as an incentive to involve others, and to supply a motive for Marshall's testimony other than a duty to recount the facts as best he could remember them. Reluctant as we are to differ with an experienced trial judge on the scope of cross-examination, the importance of this witness constrains us to hold that the transcript was erroneously excluded. 14 We believe, moreover, that the combination of these two errors was sufficiently prejudicial to require reversal. The Government, in its brief, argues strongly for the widest sort of discretion in the trial judge in these matters and urges that even if we find error or irregularity we disregard it as harmless16 and affirm the conviction. We are well aware of the necessity that appellate courts give the trial judge wide latitude in control of cross-examination, especially in dealing with collateral evidence as to character. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168. But this principle cannot be expanded to justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony. Reversals should not be based on trivial, theoretical and harmless rulings. But we cannot say that these errors were unlikely to have influenced the jury's verdict. We believe they prejudiced substantial rights and the judgment must be reversed. 15 Reversed. 1 18 U.S.C. (Supp. V) § 659, 18 U.S.C.A. § 659. 2 18 U.S.C. (Supp. V) § 2314, 18 U.S.C.A. § 2314. 3 7 Cir., 196 F.2d 886. 4 344 U.S. 813, 73 S.Ct. 33. 5 196 F.2d 886, 888. 6 Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369; Fed.Rules Crim.Proc. rule 26, 18 U.S.C.A. 7 6 Wigmore on Evidence, § 1859g. 8 2 Wharton's Criminal Evidence (11th ed.) § 785. 9 As to the pretrial discovery stage, compare Fed.Rules Civ.Proc. rule 34, 28 U.S.C.A., with the narrower provisions of Fed.Rules Crim.Proc. rule 16. 10 In Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, the notes sought to be inspected had neither been used in court, nor was there any proof that they would show prior inconsistent statements. 11 Asgill v. United States, 4 Cir., 60 F.2d 776; United States v. Krulewitch, 145 F.2d 76, 79, 156 A.L.R. 337; People v. Davis, 52 Mich. 569, 18 N.W. 362; State v. Bachman, 41 Nev. 197, 168 P. 733; People v. Schainuck, 286 N.Y. 161, 164, 36 N.E.2d 94; People v. Walsh, 262 N.Y. 140, 186 N.E. 422. 12 People v. Davis, 42 Mich. 569, 573, 18 N.W. 362, 363. 13 We note in passing that the rules relating to impeachment by prior self-contradiction, which provide that such contradiction may be shown only on a matter material to the substantive issues of the trial, contain within themselves a guarantee against multiplication and confusion of issues. Therefore the discretion of the trial judge in excluding otherwise admissible evidence of this type is not as wide as it is in the vague and amorphous area of cross-examination of character witnesses. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168. 14 3 Wigmore on Evidence, § 1037; 3 Wharton's Criminal Evidence (11th ed.) § 1309. 15 The best evidence rule is usually relied upon by one opposing admission, on the ground that the evidence offered by the proponent does not meet its standards. Its merit as an assurance of the most accurate record possible commends its extension to this unique situation where it is the proponent who seeks to rely on it. 16 Fed.Rules Crim.Proc. rule 52 admonishes us that 'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.'
01
344 U.S. 424 73 S.Ct. 349 97 L.Ed. 456 BROCKv.STATE OF NORTH CAROLINA. No. 34. Argued Oct. 23, 1952. Decided Feb. 2, 1953. Mr. Robert S. Cahoon, Greensboro, N.C., for petitioner. Mr. Ralph Moody, Raleigh, N.C., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 The petitioner and two others, Jim Cook and Elmer Matthews, employees on strike from a mill at Tarboro, North Carolina, were arrested for firing five shots from a passing auto into the house of a watchman at the mill, J. D. Wyatt. Wyatt's house was occupied at the time of the shooting by himself, his wife, his daughter and son-in-law, and the latter couple's baby. After the shooting, the petitioner and Cook and Matthews were taken to the jail. In the presence of the sheriff, a police officer, and the petitioner, Cook stated that the petitioner had helped plan the assault and had fired the shots. 2 Cook and Matthews were tried first and were found guilty of assault with a deadly weapon. Before judgments were entered on their convictions, the petitioner was placed on trial. The State put three witnesses on the stand, the sheriff, the police officer, and Wyatt's son-in-law. The State then put Cook and Matthews on the stand, intending to use their testimony to corroborate that of the other three witnesses. Cook and Matthews refused to answer the questions of the State on the ground that such answers might tend to incriminate them, and their counsel informed the court that in the event of an adverse judgment on their convictions, they would appeal therefrom to the Supreme Court of North Carolina. The trial court upheld their refusal to answer. The State represented to the court that the testimony of Cook and Matthews was necessary for the State to present its case fully before the jury, and moved that the court withdraw a juror from the sworn panel and declare a mistrial. The court did so, stating: 'being of the opinion that the ends of justice require that the State have available for its (sic) testimony of the witnesses Jim Cook and Elmer Matthews when the case is tried and that the State is entitled to have those witnesses to testify after their cases have been disposed of in the Supreme Court, in its discretion withdraws a juror * * * and orders a mistrial of this case and that the same be continued.' The petitioner objected. 3 The Supreme Court of North Carolina affirmed the convictions of Cook and Matthews. State v. Matthews, 231 N.C. 617, 58 S.E.2d 625. The State then proceeded to impanel a jury for the second time, and this time it tried the petitioner to conclusion before this panel. He objected that to do so would place him in jeopardy a second time and thus deny him due process of law, contrary to the provisions of the Fourteenth Amendment to the Constitution of the United States. His objection was overruled, and he was placed on trial. Cook testified as a witness for the State. The petitioner was found guilty and sentenced to two years' imprisonment. From this judgment, he appealed to the Supreme Court of North Carolina, which affirmed his conviction. State v. Brock, 234 N.C. 390, 67 S.E.2d 282. He then sought certiorari here, which we granted. 343 U.S. 914, 72 S.Ct. 649. 4 North Carolina has said there is no double jeopardy because the trial court has the discretion to declare a mistrial and require the defendant to be presented before another jury if it be in the interest of justice to do so. This has long been the common-law rule in North Carolina. State v. Brock, supra; State v. Dove, 222 N.C. 162, 22 S.E.2d 231; State v. Guice, 201 N.C. 761, 161 S.E. 533; State v. Weaver, 35 N.C. 203, 13 Ired.L. 203. 5 The question whether such a procedure would be double jeopardy under the Fifth Amendment to the Constitution of the United States is not raised in this case, as the Fifth Amendment applies only to federal jurisdictions. Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97. 6 The question before us is whether the requirement that the defendant shall be presented for trial before a second jury for the same offense violates due process of law as required of the State under the Fourteenth Amendment. The question has been here before under different circumstances. In Palko v. State of Connecticut, supra, the defendant was first tried for murder in the first degree and was found guilty of murder in the second degree. Pursuant to a statute of Connecticut, the State appealed and obtained a reversal for errors of law at the trial. The defendant was retried, convicted of murder in the first degree, and sentenced to death. An appeal to this Court raised the question whether or not the requirement that he stand trial a second time for the same offense placed him twice in jeopardy, in violation of due process. 7 This Court held that the State had not denied the defendant due process of law. In order to indicate the nature of due process, this Court asked two questions: 8 'Is that kind of double jeopardy to which the state has subjected him a hardship so acute and shocking that our polity will not endure it? Does it violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions'? * * * The answer surely must be 'no." 302 U.S. 319, 328, 58 S.Ct. 153, 82 L.Ed. 288. 9 Here the answer must be the same. 10 This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974; Thompson v. United States, 155 U.S. 271, 273—274, 15 S.Ct. 73, 74, 39 L.Ed. 146. As was said in Wade v. Hunter, supra, 336 U.S. at page 690, 69 S.Ct. at page 638, 93 L.Ed. 974, 'a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice.' Justice to either or both parties may indicate to the wise discretion of the trial judge that he declare a mistrial and require the defendant to stand trial before another jury. As in all cases involving what is or is not due process, so in this case, no hard and fast rule can be laid down. The pattern of due process is picked out in the facts and circumstances of each case. The pettern here, long in use in North Carolina, does not deny the fundamental essentials of a trial, 'the very essence of a scheme of ordered justice,' which is due process. 11 The judgment is affirmed. 12 Affirmed. 13 Mr. Justice BLACK took no part in the consideration or decision of this case. 14 Mr. Justice FRANKFURTER, concurring. 15 Once it is agreed that the claim here made—freedom from being tried a second time on a criminal charge—must be tested by the independent scope of the Due Process Clause of the Fourteenth Amendment and not on the basis of the incorporation of the Fifth Amendment into the Fourteenth, the application of the guarantee of due process to a specific situation makes relevant the specific phrasing of a common result. I, therefore, deem it appropriate to add a word to the Court's opinion, in which I join. 16 The judicial history of the Fifth Amendment in prohibiting any person from being 'subject for the same offence to be twice put in jeopardy of life or limb' serves as a good pragmatic confirmation of the compelling reasons why the original Bill of Rights was found to limit the actions of the Federal Government and not those of the States. The conflicting views expressed in Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114; Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292; In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500; and Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974, indicate the subtle technical controversies to which the provision of the Fifth Amendment against double jeopardy has given rise. Implications have been found in that provision very different from the mood of fair dealing and justice which the Fourteenth Amendment exacts from a State in the prosecution of offenders. A State falls short of its obligation when it callously subjects an individual to successive retrials on a charge on which he has been acquitted or prevents a trial from proceeding to a termination in favor of the accused merely in order to allow a prosecutor who has been incompetent or casual or even ineffective to see if he cannot do better a second time. 17 Unless we can say that the trial judge was not justified in the circumstances of this case in concluding that the ground for requesting a mistrial was fair and not oppressive to the accused, we would not be warranted in finding that the State of North Carolina, through its Supreme Court, denied the petitioner due process of law. The record does not seem to me to justify such a finding. 18 Mr. Chief Justice VINSON, dissenting. 19 The petitioner and two others, Cook and Matthews, were indicted for shooting into the home of J. D. Wyatt when Wyatt and four other persons were present therein. After arrest, Cook and Matthews confessed, charging, brock with firing the shots. Brock made no confession. 20 Cook and Matthews were tried together. Wyatt, Hathaway and Bardin, the sheriff of the county, were the witnesses presented by the State. Bardin, the sheriff, testified as to the confessions of, cook and Matthews. Cook and Matthews did not testify in their own behalf. There was a verdict of guilty of assault with a deadly weapon. 21 Judgment had not been entered on the verdict when Brock was placed on trial. 22 The same witnesses used in the foregoing trial, Wyatt, Hathaway and Bardin, testified for the State. The latter witness again testified that Cook and Matthews had stated that Brock fired into the house. The prosecutor offered Cook and Matthews as witnesses. They declined to testify on the ground of self-incrimination, and the court sustained this claim of privilege. 23 At this point, the Solicitor moved to withdraw a juror and for a mistrial and the continuance of the case pending final judgment against Cook and Matthews. His motion was granted, and a mistrial and continuance of the case ordered. 24 Thereafter, a judgment of two years' imprisonment was entered on the verdict against Cook and Matthews. Their appeal to the Supreme Court of North Carolina was affirmed. State v. Matthews, 1950, 231 N.C. 617, 58 S.E.2d 625. 25 Subsequently, Brock was brought to trial again. He interposed a plea of former jeopardy which the court denied. Proper exceptions were taken and the federal question herein presented and preserved. Then he pleaded not guilty to the indictment. The same three witnesses, Wyatt, Hathaway and Bardin, the sheriff, testified in Brock's second trial to facts substantially similar to their evidence in the first trial. The sheriff reiterated his testimony that Cook and Matthews had stated that Brock fired the rifle into the house. Thereupon, the Solicitor called Cook and Matthews to the stand, and this time they testified to the part that they took in the shooting and that Brock had fired into the Wyatt home. The jury convicted, and Brock was sentenced for a two-year imprisonment. 26 The Supreme Court of North Carolina affirmed the judgment, holding that Brock's plea of former jeopardy was properly denied. State v. Brock, 1951, 234 N.C. 390, 67 S.E.2d 282. 27 The petitioner is here urging that he was placed in jeopardy a second time, and thereby was denied due process of law guaranteed to him by the Fourteenth Amendment to the Constitution of the United States. We granted certiorari. 1952, 343 U.S. 914, 72 S.Ct. 649. 28 For the first time in the history of this Court, it is urged that a state could grant a mistrial in order that it might present a stronger case at some later trial and, in so doing, avoid a plea of former jeopardy in the second trial. 29 The Solicitor had convicted two defendants engaged in the same crime, by the testimony of Wyatt, Hathaway and Bardin, the sheriff. Cook and Matthews had refused to testify in their own behalf in that trial. Immediately the first Brock trial followed. The judgment of conviction against Cook and Matthews had not been entered. No motion for a continuance appears in the record. The State willingly entered upon the trial. It had all the witnesses and the evidence which had convicted Cook and Matthews of the same crime. It presented that evidence. Cook and Matthews refused to testify on the ground of self-incrimination, and the court sustained their position. Under the circumstances, the Solicitor either knew or should have known that Cook and Matthews would not testify. After all the State's evidence was in, and after Cook and Matthews refused to testify, the Solicitor moved for a mistrial. The basis for his motion was that the State would, at a later date, be able to present a stronger case against Brock since Cook and Matthews might, at a later date, testify differently or to additional facts, than at the first trial. It must be remembered that they had not testified at any trial. The court sustained the motion that a juror be withdrawn and a mistrial ordered and the case continued pending the final judgment in the case against Matthews and Cook. The court stated it was of the opinion that 'the ends of justice require that the State have available for its testimony of the witnesses Jim Cook and Elmer Matthews when the case is tried and that the State is entitled to have those witnesses to testify after their cases have been disposed of in the Supreme Court.'1 30 The sole question is whether the record in this case presents an offense to fundamental fairness and due process. Under the results reached by the Court, the state is free, if the prosecutor thinks a conviction probably cannot be won from the jury on the testimony at the trial, to stop the trial and insist that it be tried again on another day when it has stronger men on the field. 31 Orderly justice could not be secured if the rules allowed the defendant to ask for a mistrial at the conclusion of testimony just because the state had done well and the defense poorly. The same limitation applies to the prosecution if the scales of justice are to be kept in equal balance.2 This Court recently has said that, in applying the concept of due process of law, judges are not at large to apply their own personal standards. Rochin v. People of California, 1952, 342 U.S. 165, 72 S.Ct. 205. Thus, the considered views of many other jurisdictions may be utilized in determining the basic requirements of orderly justice and hence due process. Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. 32 I grant that North Carolina contends that its present procedure does not violate fundamental fairness. It was not always so. In State v. Garrigues, 1795, 2 N.C. 276, 278, the Supreme Court of North Carolina adopted the contrary rule in the following strong language: 33 '* * * in the reigns of the latter sovereigns of the Stuart family, a different rule prevailed, that a jury in such case might be discharged for the purpose of having better evidence against him at a future day; and this power was exercised for the benefit of the crown only: but it is a doctrine so abhorrent to every principle of safety and security, that it ought not to receive the least countenance in the courts of this country. In the time of James the second, and since the Revolution, this doctrine came under examination, and the rule as laid down by L. Coke was revived. * * * In the present case, the jury were suffered by the court's officer to separate without giving a verdict; as they could not agree to convict, it is strong evidence of the party's innocence; and perhaps he could not be tried again with the same advantage to himself as then. Perhaps his witnesses are dead, or gone away, or their attendance not to be procured, or some accident may prevent their attendance. We will not again put his life in jeopardy, more especially as it is very improbable we shall be able to possess him in of the same advantages—So he was discharged.' (Emphasis supplied.) 34 In the case of In re Speir, 1828, 12 N.C. 491, 493, 494, 498, 499, 502, the court pointed out— 35 Hall Judge.—'In this case, the guilt or innocence of the prisoner is as little the subject of enquiry, as the merits of any case can be, when it is brought before this Court on a collateral question of law. Although the prisoner, if unfortunately guilty, may escape punishment, in consequence of the decision this day made in his favor, yet it should be remembered, that the same decision may be a bulwark of safety to those, who, more innocent, may become the subjects of persecution, and whose conviction, if not procured on one trial, might be secured on a second or third, whether they were guilty or not.' 36 Taylor, Chief-Justice.—'In the remarkable case of the Kenlocks, reported by Foster * * *. A majority of the Judges * * * rejected with just animadversion the authority of those cases, which had occurred in that period of misrule and persecution, preceding the revolution. In one of these, the Court discharged a Jury in a capital case after evidence given on the part of the Crown, merely for want of sufficient evidence to convict, and in order to bring the prisoner to a second trial, when the Crown should be better prepared! 37 'These stains upon the administration of justice show to what extremes, in a state of civil discord, the passions of men urge them to trample upon the most salutary principles of law; and in what degree Judges, holding their office at the will of the sovereign, were eager to pander to his appetite for blood and forfeitures. 38 '* * * as the common law of every state already protects the accused against a second trial, not only in crimes of all descriptions, but in questions of civil right, it is to be inferred that the Constitutions meant much more, and that their design was to protect the accused against a trial, where the first Jury had been discharged without due cause.' (Emphasis supplied.) 39 But, we are told that in a later day, the North Carolina court departed from its earlier rule. We are directed to State v. Dove, 1942, 222 N.C. 162, 22 S.E.2d 231; State v. Guice, 1931, 201 N.C. 761, 161 S.E. 533; State v. Bass, 1880, 82 N.C. 570; State v. Andrews, 1914, 166 N.C. 349, 81 S.E. 416; and State v. Ellis, 1930, 200 N.C. 77, 156 S.E. 157. 40 In the Guice case, the State introduced its evidence and rested its case. Counsel for the defendant made a motion for judgment as of nonsuit. The court withdrew a juror and ordered a mistrial, and the authority of the court to take this course was the question presented on appeal. The Supreme Court of North Carolina, in disposing of the matter, said: 41 In misdemeanors, and all cases of felonies not capital, the court below has the discretion to order a mistrial and discharge a jury before verdict in furtherance of justice, and the court need not find facts constituting the necessity for such discharge, and ordinarily the action is not reviewable. In capital felonies the facts must be found and the necessity for such discharge is subject to review.'3 42 In the Bass case, supra, the court held that the judge 'had the discretion to dissolve the jury and hold the defendants for a new jury, and that the security for the proper exercise of his discretion rests not on the power of this court to review and reverse the judge, but on his responsibility under his oath of office.'4 43 While the technical ramifications evolved in the many jurisdictions as part of the doctrine of double jeopardy do not fall within the scope of due process, the basic idea is part of our American concept of fundamental fairness. This is shown by the universality of the provision against double jeopardy. The Fifth Amendment to the Federal Constitution, inapplicable here, prohibits double jeopardy. The Constitutions of all but five states, Connecticut, Maryland, Massachusetts, north Carolina, and Vermont, contain clauses forbidding double jeopardy.5 And each of those five states has the prohibition against double jeopardy as part of its common law.6 44 No case in any other jurisdiction to support North Carolina's action in this case has been pointed out to us, and my research fails to find a single prop supporting its position. On the other hand, eight states have had occasion to rule on whether there might be a second trial after the prosecutor at a previous trial was unable to present evidence. Six have taken a firm position against allowing a second trial.7 A seventh, Iowa, is in accord with the above view,8 for language to the contrary in two other Iowa cases is not in point since the mistrials in those two cases were upon the motion of the defendant.9 In Alabama, the eighth state, two cases have permitted a second trial.10 Both of those cases, however, involved facts of such extreme nature that it would have been shocking to the conscience not to permit a second trial. In one of the cases,11 the Alabama Supreme Court even indicated the result probably would be different if the prosecutor merely had been unprepared at the first trial. 45 The rule to be gleaned from the cases is that a second trial will be allowed only for extreme circumstances, often contributed to by the defendant and beyond the control of the prosecutor, which prevented the testimony from being available at the first trial. Only North Carolina has clear precedent allowing a second trial when the prosecutor simply failed to have his evidence ready at the first trial.12 46 It may be considered that this being a noncapital felony that the considered action of the judiciary of a state should be followed when it is said it is in the furtherance of justice. It certainly is the easy way out, but in view of the fact that no other state in the Union has gone to this extreme of the North Carolina rule, I must ponder upon it and conclude that the hardwon victory achieved in the field of 'double jeopardy' ought not be lost even in a small part by the affirmance of this case. 47 The Attorney General of North Carolina relies upon Palko v. State of Connecticut, 1937, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, in support of his position that the second trial of this defendant did not violate due process. In Palko, there was an appeal by the State, as allowed by statute. The Supreme Court of Connecticut found three errors prejudicial to the State committed by the trial court, and reversed the judgment and ordered a new trial.13 The second trial then followed. In the case before the Court, no error of law tainted the first trial. 48 It is apparent that in the Palko case, the Legislature of Connecticut had provided for a review of the trial by appeal. We often have said that the considered action by a state legislature or the Congress of the United States places the issue of constitutionality in a different posture in respect of due process of law. We agree that Palko decided that this Court could consider a particular case of double jeopardy of a defendant as not being within the protective limits of due process of the Fourteenth Amendment to the Constitution. 49 Certainly, Palko did not decide the issue in this case. In that case, under a state statute, the State was asking for a second trial to obtain a trial free from error by the court prejudicial to the State. Here, the State asks for its second trial in order to suit the convenience of the Solicitor in an endeavor to strengthen the State's case, when the defendant had done nothing either to bring about trial errors or to inveigle or entrap the Solicitor to proceed to the first trial. 50 While this case is not controlled by Palko, I am comforted by language found in it which, in my view, envisions this case as one which might well be within the protective embrace of the Due Process Clause of the Fourteenth Amendment. Speaking for the Court, Justice Cardozo said: 51 'What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. We deal with the statute before us and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error.'14 52 I also receive comfort from the language contained in Mr. Justice FRANKFURTER'S concurring opinion in this case. He says that a state falls short of its obligation 'when it callously subjects an individual to successive retrials on a charge on which he has been acquitted or prevents a trial from proceeding to a termination in favor of the accused merely in order to allow a prosecutor who has been incompetent or casual or even ineffective to see if he cannot do better a second time.' In my view, this case is snugly embraced in his very clear statement of the law as I have always understood it until today. 53 Wade v. Hunter, 1949, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974, is cited in support of the discretion of a trial judge 'to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served.' Thompson v. United States, 1894, 155 U.S. 271, 273—274, 15 S.Ct. 73, 74, 39 L.Ed. 146, is likewise referred to in the majority opinion. I have no quarrel with either of these cases. In the Wade case, with which I agree, the court-martial trial was held in the midst of the campaign to overthrow the forces of Germany. There was a continuance in the trial to get certain witnesses. Before that date was reached, there were further advances toward the enemy. The Army needed the officers participating in the trial for tactical purposes, and the court-martial was dissolved. In the Thompson case, after the jury was sworn and a witness testified, a member of the jury was found to be disqualified because he was a member of the Grand Jury which filed the indictment. The jury was discharged, and a plea of jeopardy was interposed at the second trial. Nothing was called to the attention of the prosecutor or the court that such a condition obtained or might have obtained. The plea of former jeopardy was overruled with cases cited. The Court said: 54 'Those cases clearly establish the law of this court that courts of justice are invested with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and that the defendant is not thereby twice put in jeopardy, within the meaning of the fifth amendment to the constitution of the United States.'15 55 I submit there was no manifest necessity to discharge this jury after the State had proceeded to trial and offered all its evidence, and I submit that the ordering of a mistrial here for the convenience of the State does not promote the ends of public justice. 56 Mr. Justice DOUGLAS, dissenting. 57 In 1795, when the reasons for the guarantee against double jeopardy were still fresh in men's minds, a North Carolina court stated the basis for not allowing the prosecution to have a jury discharged so that it could obtain better evidence against the accused. 58 'The rule as laid down in 3 Co.Inst., 110, and 1 Inst., 227, is general and without exception that a jury in a capital case cannot be discharged without giving a verdict. Afterwards, however, in the reigns of the latter sovereigns of the Stuart family, a different rule prevailed, that a jury in such case might be discharged for the purpose of having better evidence against him at a future day; and this power was exercised for the benefit of the crown only; but it is a doctrine so abhorrent to every principle of safety and security that it ought not to receive the least countenance in the courts of this country. In the time of James II, and since the Revolution, this doctrine came under examination,1 and the rule as laid down by my Lord Coke was revived with this addition, that a jury should not be discharged in a capital case unless for the benefit of the prisoner; as if the prisoner be a woman and be taken in labor; or if the prisoner after the jury are charged with him be found to be insane, and the like; or if at the prisoner's request a jury be withdrawn to let him in to take the benefit of an exception, which otherwise he would have lost * * *. In the present case the jury were suffered by the court's officer to separate without giving a verdict. As they could not agree to convict, it is strong evidence of the party's innocence; and perhaps he could not be tried again with the same advantage to himself as then. Perhaps his witnesses are dead, or gone away, or their attendance not to be procured, or some accident may prevent their attendance. We will not again put his life in jeopardy more especially as it is very improbable we shall be able to possess him of the same advantages.' State v. Garrigues, 2 N.C. 241. 59 That point of view should shape our conception of double jeopardy and due process of law. Once the prosecution can call a halt in the middle of a trial in order to await a more favorable time, or to find new evidence, or to make up the deficiencies in the testimony of its witnesses, the promise of protection against double jeopardy loses the great force it was thought to have when the Constitution was written. At that time the practices of the Stuarts were freshly in mind. And it was resolved that they should not reach these shores. 1 R. 16. 2 Cf. the classic expression of Justice Cardozo in the opinion of this Court in Palko, 'The edifice of justice stands, its symmetry, to many, greater than before.' 1937, 302 U.S 319, 328, 58 S.Ct. 149, 153, 82 L.Ed 288. 3 1931, 201 N.C. at page 763, 161 S.E. at page 534. 4 1880, 82 N.C. at page 575. 5 State v. Brunn, 1945, 22 Wash.2d 120, 154 P.2d 826, 157 A.L.R. 1049. 6 State v. Benham, 1829, 7 Conn. 414; Gilpin v. State, 1923, 142 Md. 464, 121 A. 354; Commonwealth v. McCan, 1931, 277 Mass. 199, 178 N.E. 633, 78 A.L.R. 1208; State v. Clemmons, 1934, 207 N.C. 276, 176 S.E. 760, and State v. O'Brien, 1934, 106 Vt. 97, 170 A. 98. 7 Allen v. State, 1906, 52 Fla. 1, 41 So. 593 (during first trial defendant secured continuance to secure absent witness, prosecutor then moved for and secured mistrial); State ex rel. Meador v. Williams, 1906, 117 Mo.App. 564, 92 S.W. 151 (prosecution witness did not respond to subpoena); People v. Barrett, 1805, 2 Caines, N.Y., 304, 2 Am.Dec. 239 (State could not use secondary evidence as to document since defendant not given due notice to produce); State v. Richardson, 1896, 47 S.C. 166, 25 S.E. 220, 35 L.R.A. 238 (prosecutor by mistake told witness to go home); Pizano v. State, 1886, 20 Tex.App. 139, 54 Am.Rep. 511 (prosecutor answered ready and started trial after being incorrectly informed by sheriff that all witnesses were present); State v. Little, 1938, 120 W.Va. 213, 197 S.E. 626 (at noon recess prosecutor told witnesses to be back at 1:30 p.m.; when they had not returned by 2 p.m. he secured mistrial). Only the leading case in each jurisdiction has been cited. There is a total of approximately fifteen more decisions in these jurisdictions in accord with the cited cases. 8 State v. Callendine, 1859, 8 Iowa 288 (witness incompetent to testify because his name not indorsed on indictment, mistrial on motion of the court). 9 State v. Parker, 1885, 66 Iowa 586, 24 N.W. 225, and State v. Falconer, 1886, 70 Iowa 416, 30 N.W. 655. 10 State v. Nelson, 1845, 7 Ala. 610 (jury irregularly sworn too early and the proceedings then revealed further issues previous to the time the jury should have been impaneled and sworn); Hughes v. State, 1860, 35 Ala. 351 (before trial defendant agreed to a mistrial if a certain witness were too intoxicated to testify; defendant then objected to a mistrial when the agreed condition occurred). 11 'If the question really was, that the jury had been discharged because the prosecuting officer was not prepared to proceed with the trial, we should entertain very serious doubts of the power of a court to discharge a jury for that cause only; but it is a very different matter when, from the intervention of some irregularity in the proceedings, either a jury has been improperly impaneled, or an improper juror sworn.' State v. Nelson, supra, 7 Ala. at page 614. 12 State v. Dove, 1942, 222 N.C. 162, 22 S.E.2d 231, 232 (court ordered mistrial since evidence desired by State 'was not presently available'); State v. Guice, 1931, 201 N.C. 761, 161 S.E. 533 (defendant moved for nonsuit after State had offered all its testimony; court instead of ruling on the motion for nonsuit declared a mistrial). 13 State v. Palko, 1936, 121 Conn. 669, 186 A. 657. 14 1937, 302 U.S. at page 328, 58 S.Ct. at page 153, 82 L.Ed. 288. 15 Thompson v. United States, 1894, 155 U.S. 271, 274, 15 S.Ct. 73, 74, 39 L.Ed. 146. 1 The strict rule, laid down by Coke, was departed from during the reign of the Stuarts (1603—1714), notably in the case of the treason trials of Whitebread and Fenwick, 7 How.st.Trial 120 and 315. There the jury was discharged at the close of the Crown's evidence, because of the failure to satisfy the two-witness rule. The defendants were later retried after the prosecution had remedied the defect. See also 2 Hale's P.C. 294. This practice was condemned in 1746 as an example of the great abuse to which the power to discharge the jury is subject. See Kinloch's Case, 2 Foster's Reports 22. In 1698 in the time of Lord Holt, the judges formulated rules regarding the matter: '(1) That in capital cases a juror cannot be withdrawn, tho' all parties consent to it. (2) That in criminal cases, not capital, a juror may be withdrawn, if both parties consent, but not otherwise. (3) And that in all civil causes, a juror cannot be withdrawn, but by consent of all parties.' See Carthew's Reports 465. Those rules were in time construed to be rules of practice or guides for the exercise of discretion, not rules of law, the breach of which entitled a defendant to plead former jeopardy. See Queen v. Charlesworth, 1 B. & S. 460; Winsor v. Queen, 118 Eng.C.L.R. 141; Queen v. Lewis, 2 Cr.App.R. 180. There is a review of this history in the dissenting opinion of Crampton, J., in Conway v. Regina, 7 Irish L.Rep. 149, 165 et seq.
01
344 U.S. 407 73 S.Ct. 358 97 L.Ed. 441 STONEv.NEW YORK, C., & ST. L.R. CO. No. 320. Argued Jan. 14, 1953. Decided Feb. 2, 1953. Rehearing Denied March 9, 1953. See 345 U.S. 914, 73 S.Ct. 639. Mr. Tyree C. Derrick, St. Louis, Mo., for petitioner. Mr. Lon Hocker, St. Louis, Mo., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Petitioner was a member of one of respondent's section crews and while in the course of his employment severely injured his back. He brought this action for damages in the Missouri courts under the Federal Employers' Liability Act, 35 Stat. 65, 36 Stat. 291, 53 Stat. 1404, 45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq. There was a jury trial and a verdict for petitioner. The Missouri Supreme Court reversed, holding that plaintiff had not made out a submissible case either as to negligence or as to causation. Mo.Sup. 249 S.W.2d 442. The case is here on certiorari. 344 U.S. 863, 73 S.Ct. 107. 2 At the time of the injury petitioner was removing old or worn track ties. The rails would be jacked up, the spikes that held the rails pulled, the plates removed, and the tie pulled. The ties were usually pulled with tongs by two men. If there were any old spikes protruding downward from the tie into the ground, three or four men would usually be required to pull the tie. 3 There were three other ways to remove a stubborn tie. One was to dig a trench beside the tie and then roll the tie into the trench. Another method was to jack the rail up high enough so the tie would come free. The objection to that method was that the ballast would run under the other ties and produce a hump in the track. Another way was to free the rail from the ties a half-rail length on each side of the tie to be removed and then to jack the rail up, freeing the tie sufficiently so that it could easily be moved. This method had disadvantages on a track as active as this one in that it meant putting up a flag and stopping trains. 4 This day Stoughton, the straw boss, used only the first method. Petitioner and one Fish together were unable to remove a tie because, as it turned out, a spike was driven through it into the ground. Stoughton told petitioner he was not pulling hard enough. Stoughton put a bar under the far end of the tie while petitioner and Fish pulled again. Still the tie would not come. Stoughton told petitioner to pull harder. Petitioner said he was pulling as hard as he could. Stoughton then said, 'If you can't pull any harder, I will get somebody that will.' So petitioner, with Fish, gave a hard pull and hurt his back. The tie was finally pulled by four men—two pulling, one prying with a crow bar, one hammering with a maul; and it turned out that the tie had a spike driven through it and extending into the ground. 5 We think the case was peculiarly one for the jury. The standard of liability is negligence. The question is what a reasonable and prudent person would have done under the circumstances. Wilkerson v. McCarthy, 336 U.S. 53, 61, 69 S.Ct. 413, 417, 93 L.Ed. 497. The straw boss had additional men to put on the tongs. He also had three alternative methods for removing stubborn ties. This was not the first difficult tie encountered by the section crew in this stretch of track. The likelihood of injury to men pulling or lifting beyond their capacity is obvious. Whether the straw boss in light of the risks should have used another or different method to remove the tie or failing to do so was culpable is the issue. To us it appears to be a debatable issue on which fair-minded men would differ. Cf. Bailey v. Central Vermont R. Co., 319 U.S. 350, 353, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444; Urie v. Thompson, 337 U.S. 163, 178, 69 S.Ct. 1018, 1028, 93 L.Ed. 1282. The experience with stubborn ties, the alternative ways of removing them, the warning by petitioner that he had been pulling as hard as he could, the command of his superior to pull harder, the fact that more than two men were usually used in these circumstances—all these facts comprise the situation to be appraised in determining whether respondent was negligent. Those circumstances were for the trier of facts to appraise. Cf. Blair v. Baltimore & O.R. Co., 323 U.S. 600, 604, 65 S.Ct. 545, 547, 89 L.Ed. 490. The fact that the employee, commanded to do the act that caused the injury, first protested does not place the risk of injury on him. Id., 323 U.S. at page 605, 65 S.Ct. at page 548. We think there was evidence of a causal connection between the order of Stoughton to pull harder and petitioner's back injury. The fact that fair-minded men might likewise reach different conclusions on this branch of the case emphasizes the appropriateness of also leaving it to the jury. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. 572; Coray v. Southern Pacific Co., 335 U.S. 520, 523, 69 S.Ct. 275, 277, 93 L.Ed. 208; Carter v. Atlanta & St. A.B.R. Co., 338 U.S. 430, 433, 70 S.Ct. 226, 228, 94 L.Ed. 236. 6 Reversed. 7 Mr. Justice FRANKFURTER, whom Mr. Justice REED and Mr. Justice JACKSON join, dissenting. 8 The Federal Employers' Liability Act embodies the common-law conception of negligence, subject to certain qualifications. Thereby it has established national standards as the basis of liability by carriers for injuries or death to railroad employees in the course of their occupation. It authorized this liability to be enforced in the courts of the several States as well as in the Federal District Courts. Since this is a federal statute the State courts must conform to these national standards. Thus, the substantive limitations upon common law negligence actions, as for instance those pertaining to assumption of risk and waivers, must be heeded by the State courts no matter what the local law of negligence may be. 9 However, the central components of liability for negligence that it rests upon fault and that appropriate causality must be established between the negligent circumstances and the complained-of injury—are the same for actions under the Federal Employers' Act as for any other negligence actions. For reasons that I for one have long deplored, Congress has seen fit to make such a concept of negligence the basis of compensation for inevitably untoward incidents. 10 I deplore this basis of liability because of the injustices and crudities inherent in applying the common law concepts of negligence to railroading. To fit the hazards of railroad employment into the requirements of a negligence action is to employ a wholly inappropriate procedure—a procedure adequate to the simple situations for which it was adapted but brutally unfit for the situations to which the Federal Employers' Liability Act requires that it be put. The result is a matter of common knowledge. Under the guise of suits for negligence, the distortions of the Act's application have turned it more and more into a workmen's compensation act, but with all the hazards and social undesirabilities of suits for negligence because of the high stakes by way of occasional heavy damages, realized all too often after years of unedifying litigation. 11 The central difficulty in utilizing the concept of negligence for these railroad injuries is the vast range of discretion that issues of fault and of causality inevitably leave to judges in determining what conscientious judges must decide, namely, whether the facts warrant a finding of fault and causality; in other words, first, the trial judge's ruling whether there was enough to go to the jury, and, secondly, the duty of appellate judges in deciding whether the trial court could have found that there was enough evidence on those two basic issues to have the case go to the jury and enough, therefore, to sustain a verdict for the plaintiff. That equally honest and equally experienced judges, equally compassionate toward the injured employee or his bereaved family, may disagree on these questions, no fair-minded judge, it would seem, can deny. These questions of assessing facts are of a very different order of issues for courts from rulings regarding the applicable standards for a jury's guidance. 12 Uniformity of direction in fitting the myriad diversity of circumstances to the applicable standards is essential. It is a duty which ultimately belongs to this Court and one which it is fitted to discharge. To assess the unique circumstances of a case is quite a different matter. And for the decisive reason that right and wrong are not objectively ascertainable, that in fact there is no right and wrong when two equally competent and equally independent judges, equally devoid of any bias or possessed of the same bias, could be the same reasoning process reach opposite conclusions on the facts. 13 This is such a case. For the issue is not whether I think that the trial court was right in allowing this case to go to the jury. Congress has seen fit to allow this action to be brought in the State courts and to forbid removal of a case to the federal court even when diversity of citizenship exists. (These cases in the state courts run into the thousands.) In thus entrusting the enforcement of the Federal Employers' Liability Act to the State courts it presupposed, as a generality, the competence of the judiciaries of the States, their professional capacity to enforce the Act and their self-critical fairness toward its purposes. When it thus put the enforcement of the law in the keeping of State courts, the Congress knew that the determination of whether there is adequate evidence to sustain a claim of negligence is one of the most elusive determinations that judges are called upon to make. To suggest that the Congress knew this, and has known it right along, is not to indulge in a fiction. Congress is composed predominantly of lawyers and this aspect of the law of negligence is known by the merest tyro. Congress could hardly have assumed when the Federal Employers' Liability Act of 1908 was enacted that this Court must reverse the State judges merely because we and they differed, where difference was more than permissible, was inevitable, concerning whether or not a particular unique set of facts made out a case of negligence. 14 Congress very early gave emphatic proof that this was not the Court to sit in judgment upon the State courts every time a majority of this Court might view the evidence differently than the State court. In 1916 the Congress explicitly withdrew Federal Employers' Liability cases from the Court's mandatory jurisdiction and left them to be reviewed only when a determination by a State court involved a federal question of substance. 39 Stat. 726, 727. 15 And so I dissent here because, while I am clear that equally understanding and fairminded judges could have held that the facts of this case were for the jury, I am no less clear that I cannot say that the Missouri Supreme Court could not, as it did, hold that the plaintiff 'did not make a submissible case under the Act either for negligence or as to causation.' The question before us is whether the judgment of the Missouri Supreme Court should be reversed. I cannot say it should be once I conclude that the Missouri court was entitled to the view it took and that I am not to substitute myself for that court in viewing the facts, although had I the independent primary responsibility of judgment I would take the other view.
78
344 U.S. 392 73 S.Ct. 361 97 L.Ed. 426 FEDERAL TRADE COMMISSIONv.MOTION PICTURE ADVERTISING SERVICE CO., Inc. No. 75. Argued Dec. 8, 1952. Decided Feb. 2, 1953. Rehearing Denied March 9, 1953. See 345 U.S. 914, 73 S.Ct. 638. Mr. James L. Morrisson, Chicago, Ill., for petitioner. Mr. Louis L. Rosen, New Orleans, La., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Respondent is a producer and distributor of advertising motion pictures which depict and describe commodities offered for sale by commercial establishments. Respondent contracts with theatre owners for the display of these advertising films and ships the films from its place of business in Louisiana to theatres in twenty-seven states and the District of Columbia. These contracts run for terms up to five years, the majority being for one or two years. A substantial number of them contains a provision that the theatre owner will display only advertising films furnished by respondent, with the exception of films for charities or for governmental organizations, or announcements of coming attractions. Respondent and three other companies in the same business (against which proceedings were also brought) together had exclusive arrangements for advertising films with approximately three-fourths of the total number of theatres in the United States which display advertising films for compensation. Respondent had exclusive contracts with almost 40 percent of the theatres in the area where it operates. 2 The Federal Trade Commission, the petitioner, filed a complaint charging respondent with the use of 'Unfair methods of competition' in violation of § 5 of the Federal Trade Commission Act, 38 Stat. 717, 719, 52 Stat. 111, 15 U.S.C. § 45, 15 U.S.C.A. § 45. The Commission found that respondent was in substantial competition with other companies engaged in the business of distributing advertising films, that its exclusive contracts have limited the outlets for films of competitors and has forced some competitors out of business because of their inability to obtain outlets for their advertising films. It held by a divided vote that the exclusive contracts are unduly restrictive of competition when they extend for periods in excess of one year. It accordingly entered a cease and desist order which prohibits respondent from entering into any such contract that grants an exclusive privilege for more than a year or from continuing in effect any exclusive provision of an existing contract longer than a year after the date of service in the Commission's order.1 47 F.T.C. 378. The Court of Appeals reversed, holding that the exclusive contracts are not unfair methods of competition and that their prohibition would not be in the public interest. 5 Cir., 194 F.2d 633. 3 The 'Unfair methods of competition', which are condemned by § 5(a) of the Act, are not confined to those that were illegal at common law or that were condemned by the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note. Federal Trade Commission v. Keppel & Bro., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814. Congress advisedly left the concept flexible to be defined with particularity by the myriad of cases from the field of business. Id., 291 U.S. at pages 310—312, 54 S.Ct. at pages 425—426. It is also clear that the Federal Trade Commission Act was designed to supplement and bolster the Sherman Act and the Clayton Act, see Federal Trade Commission v. Beech-Nut Co., 257 U.S. 441, 453, 42 S.Ct. 150, 154, 66 L.Ed. 307—to stop in their incipiency acts and practices which, when full blown, would violate those Acts, see Fashion Originators' Guild v. Federal Trade Commission, 312 U.S. 457, 463, 466, 61 S.Ct. 703, 706, 707, 85 L.Ed. 949, as well as to condemn as 'unfair method of competition' existing violations of them. See Federal Trade Commission v. Cement Institute, 333 U.S. 683, 691, 68 S.Ct. 793, 798, 92 L.Ed. 1009. 4 The Commission found in the present case that respondent's exclusive contracts unreasonably restrain competition and tend to monopoly. Those findings are supported by substantial evidence. This is not a situation where by the nature of the market there is room for newcomers, irrespective of the existing restrictive practices. The number of outlets for the films is quite limited. And due to the exclusive contracts, respondent and the three other major companies have foreclosed to competitors 75 percent of all available outlets for this business throughout the United States. It is, we think, plain from the Commission's findings that a device which has sewed up a market so tightly for the benefit of a few falls within the prohibitions of the Sherman Act and is therefore an 'unfair method of competition' within the meaning of § 5(a) of the Federal Trade Commission Act. 5 An attack is made on that part of the order which restricts the exclusive contracts to one-year terms. It is argued that one-year contracts will not be practicable. It is said that the expenses of securing these screening contracts do not warrant one-year agreements, that investment of capital in the business would not be justified without assurance of a market for more than one year, that theatres frequently demand guarantees for more than a year or otherwise refuse to exhibit advertising films. These and other business requirements are the basis of the argument that exclusive contracts of a duration in excess of a year are necessary for the conduct of the business of the distributors. The Commission considered this argument and concluded that, although the exclusive contracts were beneficial to the distributor and preferred by the theatre owners, their use should be restricted in the public interest. The Commission found that the term of one year had become a standard practice and that the continuance of exclusive contracts so limited would not be an undue restraint upon competition, in view of the compelling business reasons for some exclusive arrangement.2 The precise impact of a particular practice on the trade is for the Commission, not the courts, to determine. The point where a method of competition becomes 'unfair' within the meaning of the Act will often turn on the exigencies of a particular situation, trade practices, or the practical requirements of the business in question. Certainly we cannot say that exclusive contracts in this field should have been banned in their entirety or not at all, that the Commission exceeded the limits of its allowable judgment, see Siegel Co. v. Federal Trade Commission, 327 U.S. 608, 612, 66 S.Ct. 758, 760, 90 L.Ed. 888; Federal Trade Commission v. Cement Institute, 333 U.S. 683, 726—727, 68 S.Ct. 793, 815, 816, 92 L.Ed. 1009, in limiting their term to one year.3 6 The Court of Appeals held that the contracts between respondent and the theatres were contracts of agency and therefore governed by Federal Trade Commission v. Curtis Publishing Co., 260 U.S. 568, 43 S.Ct. 210, 67 L.Ed. 408. This was on the theory that respondent furnishes the films by bailment to the exhibitors in exchange for a contract for personal services which the exhibitors undertake to perform. But the Curtis case would be relevant here only if § 3 of the Clayton Act4 were involved. The vice of the exclusive contract in this particular field is in its tendency to restrain competition and to develop a monopoly in violation of the Sherman Act. And when the Sherman Act is involved the crucial fact is the impact of the particular practice on competition, not the label that it carries. See United States v. Masonite Corp., 316 U.S. 265, 280, 62 S.Ct. 1070, 1078, 86 L.Ed. 1461. 7 Finally, respondent urges that the sole issue raised in the Commission's complaint had been adjudicated in a former proceeding instituted by the Commission which resulted in a cease and desist order. 36 F.T.C. 957. But that was a proceeding to put an end to a conspiracy between respondent and other distributors involving the use of these exclusive agreements. The present proceeding charges no conspiracy; it is directed against individual acts of respondent. The plea of res judiciata is therefore not available since the issues litigated and determined in the present case are not the same as those in the earlier one. Cf. Tait v. Western Maryland R. Co., 289 U.S. 620, 623, 53 S.Ct. 706, 707, 77 L.Ed. 1405. 8 Reversed. 9 Mr. Justice FRANKFURTER, whom Mr. Justice BURTON joins, dissenting. 10 My doubts that the Commission has adequately shown that it has been guided by relevant criteria in dealing with its findings under § 5 of the Federal Trade Commission Act are dispelled neither by those findings nor by the opinion of the Court. The Commission has not explained its conclusion with the 'simplicity and clearness' necessary to tell us 'what a decision means before the duty becomes ours to say whether it is right or wrong.' United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 510, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023. 11 My primary concern is that the Commission has not related its analysis of this industry to the standards of illegality in § 5 with sufficient clarity to enable this Court to review the order. Although we are told that respondent and three other companies have exclusive exhibition contracts with three-quarters of the theaters in the country that accept advertising, there are no findings indicating how many of these contracts extend beyond the one-year period which the Commission finds not unduly restrictive. We do have an indication from the record that more than half of respondent's exclusive contracts run for only one year; if that is so, that part of respondent's hold on the market found unreasonable by the Commission boils down to exclusion of other competitors from something like 1,250 theaters, or about 6%, of the some 20,000 theaters in the country. The hold is on about 10% of the theaters that accept advertising. 12 Apart from uncritical citations in the brief here,1 The Commission merely states a dogmatic conclusion that the use of these contracts constitutes an 'unreasonable restraint and restriction of competition.' In re Motion Picture Advertising Service Co., 47 F.T.C. 378, 389. The Court's opinion is merely an echo of this conclusion and states without discussion that such exclusion from a market without more 'falls within the prohibitions of the Sherman Act' because, taken with exclusive contracts of other competitors, 75% of the market is shut off. But there is no reliance here on conspiracy or concerted action to foreclose the market, a charge that would of course warrant action under the Sherman Law. Indeed, we must assume that respondent and the other three companies are complying with an earlier order of the Commission directed at concerted action. See In re Screen Broadcast Corp., 36 F.T.C. 957. While the existence of the other exclusive contracts is, of course, not irrelevant in a market analysis, see Standard Oil Co. v. United States, 337 U.S. 293, 309, 69 S.Ct. 1051, 1059, 93 L.Ed. 1371, this Court has never decided that they may, in the absence of conspiracy, be aggregated to support a charge of Sherman Law violation. Cf. id., at page 314, 69 S.Ct. at page 1062. If other factors pertinent to a Sherman Law violation were present here, the Commission could not leave such factors unmentioned and simply ask us to review a broad unexplained finding that there is such a violation.2 In any event, the Commission has not found any Sherman Law violation. 13 But we are told, as is of course true, that § 5 of the Federal Trade Commission Act comprehends more than violations of the Sherman Law. The Federal Trade Commission Act was designed, doubtless, to enable the Commission to nip in the bud practices which, when full blown, would violate the Sherman or Clayton Act. But this record does not explain to us how these practices, if full blown, would violate one of those Acts. The Commission has been content to rest on its conclusion that respondent's exclusive contracts unreasonably restrain competition and tend to monopoly. If judicial review is to have a basis for functioning, the Commission must do more than pronounce a conclusion by way of fiat and without explication. This is not a tribunal for investigating an industry. Analysis of practices in the light of definable standards of illegality is for the Commission. It is for us to determine whether the Commission has correctly applied the proper standards and thus exhibited that familiarity with competitive problems which the Congress anticipated the Commission would achieve from its experience. Cf. Federal Trade Commission v. Cement Institute, 333 U.S. 683, 727, 68 S.Ct. 793, 816, 92 L.Ed. 1009. 14 No case is called to our attention which, because of factual similarity, would serve as a shorthand elucidation of the Commission's conclusion. The Standard Oil case, supra, relied on in the Commission's brief, does not serve this purpose. Although the Standard Oil case was brought under § 3 of the Clayton Act, I shall assume that it could have been brought under § 5 of the Federal Trade Commission Act, so that respondent cannot argue the inapplicability of the decision merely because the language of § 3 may be inapplicable. But taking that case simply as an expression of 'policy' underlying § 5, it is not sufficient to support the holding in this case. In the Standard Oil case, we dealt with the largest seller of gasoline in its market; Standard had entered into exclusive supply contracts with 16% of the retail outlets in the area purchasing over $57,000,000 worth of gasoline. It may be that considerations undisclosed could be advanced to indicate that the percentage of the market shut off here, calculated by a juggling of imponderables that we certainly would not confidently weigh without expert guidance, ought not to be considered significantly different from that in the Standard Oil case, or perhaps more important in the light of that decision, see 337 U.S. at page 314, 69 S.Ct. at page 1062, that the aggregate volume of business is of as great significance to the public as it was there. Even so, there are apparent differences whose effects we would need to have explained. 15 The obvious bargaining power of the seller vis-a-vis the retailer does not, so far as we are advised, have a parallel here. Nor are we apprised by proof or analysis to disregard the fact that here the advertising unlike sales of gasoline by the retailer in the Standard Oil case, is not the central business of the theaters and apparently accounts for only a small part of the theaters' revenues.3 In any event, in the Standard Oil case we recognized the discrepancy in bargaining power and pointed out that the retailers might still insist on exclusive contracts if they wanted. See 337 U.S. at page 314, 69 S.Ct. at page 1062. And although we are not told in this case whether the pressure for exclusive contracts comes mainly from the distributor or the theater, there are indications that theaters often insist on exclusive provisions. See Findings as to the Facts No. 12, In re Motion Picture Advertising Service Co., supra, at 388. 16 Further, the findings of the Commission indicate that there are some factual differences in the 'exclusive' provisions here, for in this industry, as may not have been feasible in gasoline retailing, distributors of films often do have access to the theaters having nominally exclusive contracts with competing distributors. At times the exclusive provision may do little more than give the distributor a priority over other distributors in the use of screen space. Indeed, the degree of exclusion of competitors in some instances is represented simply by the inadequacy of a 15% commission paid the 'excluded' competitor when he is permitted to show his films in theaters nominally exclusive. The Commission found the 15% unprofitable in local advertising, but it did not find how much of the affected competitors' total business, which may also have included manufacturer-dealer or cooperative advertising and national advertising, was in effect excluded because of the unprofitability of the commission in local advertising. In short, we are not told that the exclusive feature here should be considered the economic equivalent of that in the Standard Oil case. 17 Although the facts of this case do not meet the Standard Oil decision, even if that case is taken merely as an expression of antitrust policy engrafted on § 5, it is urged that the Commission should be allowed ample discretion in developing the law of unfair methods of competition to meet the exigencies of a particular situation without undue hampering by the Court. But if judicial review is to have any meaning, extension of principle to meet new situations must be based on some minimum demonstration to the courts that the Commission has relied on relevant criteria to conclude that the new application is in the public interest. In this case, apart from equivocal statements in the Trial Examiner's report on the evidence as to the interests affected by exclusion from this market, we have no specific indication of the need for enforcement in this area, cf. Federal Trade Commission v. Keppel & Bro., 291 U.S. 304, 314, 54 S.Ct. 423, 427, 78 L.Ed. 814, even if the Commission had afforded reasons why the law of unfair methods of competition should strike down exclusive contracts such as those here involved. At the least, we should remand this case to the Commission for adequate explanation of the reasons why the public interest requires its intervention and this order.4 Cf. Federal Trade Commission v. Klesner, 280 U.S. 19, 50 S.Ct. 1, 74 L.Ed. 138. 18 It is of great importance to bear in mind that the determination of the scope of the prohibition of 'unfair methods of competition' has not been left to the administrative agency as part of its fact-finding authority but is a matter of law to be defined by the courts. See Federal Trade Commission v. Gratz, 253 U.S. 421, 427, 40 S.Ct. 572, 574, 64 L.Ed. 993. The significance of such judicial review may be indicated by the dissimilar treatment of comparable standards entrusted to the enforcement of the Interstate Commerce Commission. In dealing with the provisions of the Interstate Commerce Act requiring reasonableness in rates and practices from carriers subject to the control of the Commerce Commission, we read the Act as making the application of standards of reasonableness a determination of fact by that Commission and not an issue of law for the courts. Unlike the Federal Trade Commission Act, the Interstate Commerce Act dealt with governmental regulation not only of a limited sector of the economy but of economic enterprises that had long been singled out for public control. The range within which the broadly stated concepts of reasonableness moved was confined as well as defined by experience, and application of the concepts was necessarily limited to easily comparable economic activity. On the other hand, the Federal Trade Commission Act gave an administrative agency authority over economic controls of a different sort that began with the Sherman Law—restrictions upon the whole domain of economic enterprise engaged in interstate commerce. The content of the prohibition of 'unfair methods of competition,' to be applied to widely diverse business practices, was not entrusted to the Commission for ad hoc determination within the interstices of individualized records but was left for ascertainment by this Court. 19 The vagueness of the Sherman Law was saved by imparting to it the gloss of history. See Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232. Difficulties with this inherent uncertainty in the Sherman Law led to the particularizations expressed in the Clayton Act. 38 Stat. 730. The creation of the Federal Trade Commission, 38 Stat. 717, made available a continuous administrative process by which fruition of Sherman Law violations could be aborted. But it is another thing to suggest that anything in business activity that may, if unchecked, offend the particularizations of the Clayton Act may now be reached by the Federal Trade Commission Act. The curb on the Commission's power, as expressed by the series of cases beginning with the Gratz case, supra, so as to leave to the courts rather than the Commission the final authority in determining what is an unfair method of competition, would be relaxed, and unbridled intervention into business practices encouraged. 20 I am not unaware that the policies directed at maintaining effective competition, as expressed in the Sherman Law, the Clayton Act, as amended by the Robinson-Patman Act, and the Federal Trade Commission Act, are difficult to formulate and not altogether harmonious. Therefore, the interpretation of the Acts by the agency which is constantly engaged in construing them should carry considerable weight with courts even in the solution of the legal puzzles these statutes raise. But he is no friend of administrative law who thinks that the Commission should be left at large. In any event, whatever problems would be raised by withholding judicial review from determinations of the Commission are for Congress to face, at least in the first instance. See my views expressed in Stark v. Wickard, 321 U.S. 288, 311, 64 S.Ct. 559, 571, 88 L.Ed. 733. Until Congress chooses to do so, we cannot shirk our duty by leaving determinations of law to the discretion of the Federal Trade Commission. Not only must we abstain from approving a mere say-so of the Commission and thus fail to discharge the task implied by judicial review. It is also incumbent upon us to seek to rationalize the four statutes directed toward a common end and make of them, to the extent that what Congress has written permits, a harmonious body of law. This opinion is an attempt, at least by way of adumbration, to carry out this aim. 21 I would have the Court of Appeals remand this case to the Commission. 1 Comparable findings and like orders were entered in each of the three companion cases. Matter of Reid H. Ray Film Industries, 47 F.T.C. 326; Matter of Alexander Film Co., 47 F.T.C. 345; Matter of United Film Ad Service, Inc., 47 F.T.C. 362. 2 The Commission said: 'Under the general practice the representative of the respondent first contacts the theater to determine if space is available for screen advertising and makes such arrangements as conditions warrant with respect to such space. In this way respondent's representative is able to show prospective advertisers where space is available. In contacting the theater it is necessary for the respondent to estimate the amount of space it will be able to sell to advertisers. Since film advertising space in theaters is limited to four, five, or six advertisements, it is not unreasonable for respondent to contract for all space available in such theaters, particularly in territories canvassed by its salesmen at regular and frequent intervals. 'It is therefore the conclusion of the Commission in the circumstances here that an exclusive screening agreement for a period of one year is not an undue restraint upon competition.' 47 F.T.C. 389. 3 A suggestion is made that respondent needs a period longer than one year in view of the fact that the contracts with advertisers are often not co-terminous with the exclusive screening agreements, due in large part to the delays in obtaining advertising contracts after the exclusive screening agreements have been executed. The Commission rejected this contention stating that by custom and by the terms of the exclusive contracts the theatre completes the screening of advertisements as required by the advertising contracts, even though those contracts extend beyond the expiration date of the exclusive screening agreement. We have concluded that the order which the Commission entered in this case is consistent with that construction. It does not prevent the completion of any particular advertising contract after the expiration of the exclusive screening agreement. The order merely prevents respondent from requiring the theatre owner to show only its films after that date. It does not prevent the theatre owner from making an otherwise exclusive agreement with another distributor at that time. No theatre owner is a party to this proceeding. The cease and desist order binds only respondent. 4 This section makes unlawful a lease, sale, or contract for sale which substantially lessens competition or tends to create a monopoly. 15 U.S.C. § 14, 15 U.S.C.A. § 14. 1 The decisions of this Court relied on do not dispose of this case. In International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20, we dealt with the largest producer of salt for industrial purposes, who by means of tying agreements rather than exclusive contracts, attempted an undue extension of his patent monopoly. Apart from these differences, it deserves to be noted that sale sales in one year amounted to $500,000 by the patentee. To the extent that that decision is predicated on a Sherman Law violation, it seems inapplicable here. In United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010, apart from other differences, conspiracy was charged to shut off a substantial share of the market permanently by means of vertical integration. United States v. Pullman Co., D.C., 50 F.Supp. 123, in which many other factors were present and the share of the market considerable, was affirmed by an equally divided Court. 330 U.S. 806, 67 S.Ct. 1078, 91 L.Ed. 1263. 2 The strongest finding of the Commission, par. 11, Findings as to the Facts, 47 F.T.C., at 387, states that these contracts have been 'of material assistance in permitting the respondent to hold for its own use the screens of the theaters with which such contracts were made and has deprived competitors of the respondent from showing their advertising films in such theaters thereby limiting the outlets for their films in a more or less limited field and in some instances resulted in such competitors being forced to go out of the screen advertising business because of inability to obtain outlets for their screen advertising.' Most contracts have the practical effect of excluding those who are not parties, and failure to obtain business is of course a cause of business failure. If all contracts are not to be bad on such reasoning, it seems there must be more, particularly in view of indications here not adverted to by the Commission in its formal findings that what little business failure there has been among competitors may to some extent have resulted from the inferior quality of those competitors' films. See Trial Examiner's Report Upon the Evidence, R. 44. In any event, such a finding does not establish a Sherman Law violation. In Sherman Law proceedings, we would have issues sharply defined in Sherman Law terms and findings from relevant evidence specifically directed to those terms made by the District Judge. Findings adverse to a claim of violation of the Sherman Law would have the weight given by Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Cf. United States v. Oregon State Med. Soc., 343 U.S. 326, 332, 72 S.Ct. 690, 695. 3 It may well be that this factor will turn out to be of little significance. In an entirely different context, we recognized that such a factor need not be decisive in an attempt to assess the competitive effects, as among purchasers, of discriminatory pricing. See Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 49—50, 68 S.Ct. 822, 829—830, 92 L.Ed. 1196. Since here, however, the factor probably bears more on the relative bargaining power of theaters and distributors than on competitive effects among the theaters, different considerations may operate. 4 Since I take this view of the case, I need not attempt to determine whether the issues in this case have already been adjudicated in favor of the respondent. Without consideration of the record in the former proceedings, I cannot say whether the issues, raised as they apparently were in the pleadings before the Commission, were decided so as to preclude a second trial of those issues. Circumstances now undisclosed may justify the Commission's exercise of its flexible powers.
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344 U.S. 386 73 S.Ct. 381 97 L.Ed. 422 DE LA RAMA S.S. CO., Inc.v.UNITED STATES. No. 368. Argued Jan. 15, 1953. Decided Feb. 2, 1953. Mr. Harold M. Kennedy, Brooklyn, N.Y., for petitioner. Mr. Benjamin Forman, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 This is a suit in admiralty against the United States, in which the libellant, petitioner here, sought to recover for its loss of the M. V. Dona Aurora, which was sunk by enemy action on December 25, 1942. The basis of the libel was a war risk policy issued by the War Shipping Administration under the War Risk Insurance Act of June 29, 1940, 54 Stat. 689, 690, as amended ,46 U.S.C. § 1128d, 46 U.S.C.A. § 1128d. The libel was filed on December 22, 1944. On July 25, 1947, Congress passed a Joint Resolution putting an end to a large body of war powers. Among the hundred-odd statutory provisions thus repealed was the War Risk Insurance Act. 61 Stat. 449, 450. On October 4, 1948, determination of damages in advance of trial was referred to a Commissioner; his report was filed on March 23, 1950; it was confirmed (subject to some exceptions) on July 27, 1950, D.C., 92 F.Supp. 243; the case was reached for trial on March 6, 1951. The Government for the first time then raised the jurisdictional issue on which this case turns here, namely, whether the District Court had, as of July 25, 1947, been deprived of jurisdiction to retain this suit by the Joint Resolution. 2 The District Court rejected the Government's contention, holding that § 13 of the Revised Statutes, as amended,* saved the libellant's cause of action from being extinguished by the Joint Resolution of July 25, 1947. The court properly called attention to the fact that § 13, originally § 4 of the Act of February 25, 1871, 16 Stat. 431, 432, was reenacted, as amended, 58 Stat. 118, as 1 U.S.C.(Supp. I) § 109, 1 U.S.C.A. § 109, 61 Stat. 633, 635, after passage of the Joint Resolution, to wit, on July 30, 1947. 98 F.Supp. 514. However, the Government's view prevailed in the Court of Appeals. That court held that 'the district court on July 25, 1947 lost its power to deal further with the litigation.' 198 F.2d 182, 186. The Government recognized the importance of this ruling, and we brought the case here, limiting our grant of certiorari to the question of the jurisdiction of the District Court. 344 U.S. 883, 73 S.Ct. 184. 3 The precise contention which the Government made in the Court of Appeals, and which prevailed there, goes a long way toward disposing of itself. The Government did not contend that its liability to the petitioner came to an end with the Joint Resolution's repeal of the War Risk Insurance Act. Apart from R.S. § 13, the Constitution precludes extinction of the Government's liability. Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434. The Government realized that its liability under the War Risk Insurance Act survived the Joint Resolution, but claimed that the mode provided by the Act for its enforcement did not. In this Court, the Government receded even from that position. It here took the academic position of giving the arguments pro and con, of stating the reasons why R.S. § 13, the General Savings Statute, now 1 U.S.C.(Supp.I) § 109, 1 U.S.C.A. § 109, should be held to govern this situation, and also the reasons why it should be held inapplicable. We find the latter considerations more subtle than persuasive, and conclude that the arguments urged in support of the continuing jurisdiction of district courts to hear causes of action which arose under the War Risk Insurance Act prior to its repeal must prevail. 4 In dealing with the present problem it is idle to thresh over the old disputation as to when the Government is, and when the Government is not, bound by a statute unrestricted in its terms. R.S. § 13, as reenacted, lays down a general rule regarding the implications for existing rights of the repeal of the law which created them. It embodies a principle of fair dealing. When the Government has entered upon a conventional commercial endeavor, such as the insurance business, it as much offends standards of fairness for it to violate the principle of R.S. § 13 as for private enterprise to do so. 5 This brings us to the crux of the contention which prevailed below, namely, that while the Government's obligation as an insurer, while came into being with the sinking of the Dona Aurora on December 25, 1942, survived the repeal of the War Risk Insurance Act by the Joint Resolution of 1947, the 'liability' could be enforced only in the Court of Claims, not in the District Court. This conclusion is no more substantial than the tenuous bits of legal reasoning of which it is compounded. 6 By the General Savings Statute Congress did not merely save from extinction a liability incurred under the repealed statute; it saved the statute itself: 7 'and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action * * * for the enforcement of such * * * liability.' 8 We see no reason why a careful provision of Congress, keeping a repealed statute alive for a precise purpose, should not be respected when doing so will attain exactly that purpose. 9 This case demonstrates the concrete, dollars-and-cents importance of saving the statute and not merely the liability. Indeed, in this case the liability under the statute is not wholly saved unless that portion of the statute which gives the District Court jurisdiction also survives. As the Government fairly points out, to deny petitioner the opportunity to enforce its right in admiralty and to send it to the Court of Claims instead is to diminish substantially the recoverable amount, since in a district court sitting in admiralty interest accrues from the time of filing suit, 46 U.S.C. § 745, 46 U.S.C.A. § 745, while in the Court of Claims interest does not begin to run until the entry of judgment. 28 U.S.C. (Supp. IV) § 2516, 28 U.S.C.A. § 2516. 10 For the Government to acknowledge the liability but to deny the full extent of its enforceability recalls what was said in The Western Maid, 257 U.S. 419, 433, 42 S.Ct. 159, 161, 66 L.Ed. 299: 'Legal obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp.' 11 The Government rightly points to the difference between the repeal of statutes solely jurisdictional in their scope and the repeal of statutes which create rights and also prescribe how the rights are to be vindicated. In the latter statutes, 'substantive' and 'procedural' are not disparate categories; they are fused components of the expression of a policy. When the very purpose of Congress is to take away jurisdiction, of course it does not survive, even as to pending suits, unless expressly reserved. Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264, is the historic illustration of such a withdrawal of jurisdiction, of which less famous but equally clear examples are Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409, and Bruner v. United States, 343 U.S. 112, 72 S.Ct. 581. If the aim is to destroy a tribunal or to take away cases from it, there is no basis for finding saving exceptions unless they are made explicit. But where the object of Congress was to destroy rights in the future while saving those which have accrued, to strike down enforcing provisions that have special relation to the accrued right and as such are part and parcel of it, is to mutilate that right and hence to defeat rather than further the legislative purpose. The Government acknowledges that there were special considerations, apart from the matter of interest, for giving the insured under the War Risk Insurance Act access to the district courts rather than relegating him to the Court of Claims. In repealing the War Risk Insurance Act among numerous other statutes, Congress was concerned not with jurisdiction, not with the undesirability of the district courts and the suitability of the Court of Claims as a forum for suits under that Act. It was concerned with terminating war powers after the 'shooting war' had terminated. 12 While the Government took a neutral position in this Court on the survival of the District Court's jurisdiction under the War Risk Insurance Act, it emphatically urged us to hold that, in any event, the repeal of that Act did not extinguish the District Court's jurisdiction to hear this case, sitting in admiralty pursuant to the Suits in Admiralty Act of March 9, 1920, 41 Stat. 525, 46 U.S.C. § 741 et seq., 46 U.S.C.A. § 741 et seq. Since we have concluded that the District Court was correct in holding that this libel was properly before it under the War Risk Insurance Act, it would be superfluous to consider the applicability of the other statute. 13 Reversed. 14 Mr. Justice DOUGLAS concurs in the result. * 'The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.'
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344 U.S. 604 73 S.Ct. 481 97 L.Ed. 593 LUTWAK et al.v.UNITED STATES. No. 66. Argued Dec. 8 and 9, 1952. Decided Feb. 9, 1953. Rehearing Denied March 16, 1953. See 345 U.S. 919, 73 S.Ct. 726. Mr. A. Bradley Eben, Chicago, Ill., for petitioners. Mr. Marvin E. Frankel, Washington, D.C., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 The petitioners, Marcel Max Lutwak, Munio Knoll, and Regina Treitler, together with Leopold Knoll and Grace Klemtner, were indicted on six counts in the Northern District of Illinois, Eastern Division. The first count charged conspiracy to commit substantive offenses set forth in the remaining five counts and conspiracy 'to defraud the United States of and concerning its governmental function and right of administering' the immigration laws and the Immigration and Naturalization Service, by obtaining the illegal entry into this country of three aliens as spouses of honorably discharged veterans. Grace Klemtner was dismissed from the indictment before the trial because her constitutional rights had been violated before the grand jury. At the conclusion of all the evidence, the District Court dismissed the substantive counts against all of the defendants because venue had not been shown in the Northern District of Illinois. The jury acquitted Leopold Knoll and convicted the three petitioners on the conspiracy count. The Court of Appeals affirmed, 7 Cir., 195 F.2d 748, and we granted certiorari, 344 U.S. 809, 73 S.Ct. 13. 2 We are concerned here only with the conviction of the petitioners of the alleged conspiracy. Petitioner Regina Treitler is the sister of Munio Knoll and Leopold Knoll, and the petitioner Lutwak is their nephew. Munio Knoll had been married in Poland in 1932 to one Maria Knoll. There is some evidence that Munio and Maria were divorced in 1942, but the existence and validity of this divorce are not determinable from the record. At the time of the inception of the conspiracy, it the summer of 1947, Munio, Maria and Leopold were refugees from Poland, living in Paris, France, while Regina Treitler and Lutwak lived in Chicago, Illinois. Petitioner Treitler desired to get her brothers into the United States. 3 Alien spouses of honorably discharged veterans of World War II were permitted to enter this country under the provisions of the so-called War Brides Act which provides in pertinent part: 4 '* * * notwithstanding any of the several clauses of section 3 of the Act of February 5, 1917, excluding physically and mentally defective aliens, and notwithstanding the documentary requirements of any of the immigration laws or regulations, Executive orders, or Presidential proclamations issued thereunder, alien spouses or alien children of United States citizens serving in, or having an honorable discharge certificate from the armed forces of the United States during the Second World War shall, if otherwise admissible under the immigration laws and if application for admission is made within three years of the effective date of this Act, be admitted to the United States * * *.' 59 Stat. 659, 8 U.S.C. § 232. 5 The first count of the indictment charged that the petitioners conspired to have three honorably discharged veterans journey to Paris and go through marriage ceremonies with Munio, Leopold and Maria. The brothers and Maria would then accompany their new spouses to the United States and secure entry into this country by representing themselves as alien spouses of World War II veterans. It was further a part of the plan that the marriages were to be in form only, solely for the purpose of enabling Munio, Leopold and Maria to enter the United States. The parties to the marriages were not to live together as husband and wife, and thereafter would take whatever legal steps were necessary to sever the legal ties. It was finally alleged that the petitioners conspired to conceal these acts in order to prevent disclosure of the conspiracy to the immigration authorities. 6 The conspiracy to commit substantive offenses consisted in that part of the plan by which each of the aliens was to make a false statement to the immigration authorities by representing in his application for admission that he was married to his purported spouse, and to conceal from the immigration authorities that he had gone through a marriage ceremony solely for the purpose of gaining entry into this country with the understanding that he and his purported spouse would not live together as man and wife, but would sever the formal bonds of the ostensible marriage when the marriage had served its fraudulent purpose. 7 The statute defining conspiracy reads as follows: 8 'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.' 18 U.S.C. (1946 ed.) § 88, now 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371. 9 The sections of the statute which it was alleged the petitioners conspired to violate provide in pertinent part: 10 'Any alien who hereafter enters the United States at any time or place other than as designated by immigration officials or eludes examination or inspection by immigration officials, or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall be guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment for not more than one year or by a fine of not more than $1,000, or by both such fine and imprisonment.' 45 Stat. 1551, 8 U.S.C. § 180a, 8 U.S.C.A. § 180a. 11 'Whoever knowingly makes under oath any false statement in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, shall, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both.' 43 Stat. 153, 165, 8 U.S.C. (1946 ed.) § 220(c), now 18 U.S.C. (Supp. V) § 1546, 18 U.S.C.A. § 1546. 12 From the evidence favorable to the Government, the jury could reasonably have believed that the following acts and transactions took place, and that the petitioners conspired to bring them about. Lutwak, a World War II veteran, was selected to marry Maria Knoll, his aunt by marriage. He went to Paris where he went through a marriage ceremony with Maria. They traveled to the United States, entering the port of New York on September 9, 1947. They represented to the immigration authorities that Maria was the wife of Lutwak, and upon that representation Maria was admitted. They never lived together as man and wife, and within a few months Munio and Maria commenced living together in this country as man and wife, holding themselves out as such. Lutwak, in the meantime, represented himself to friends as an unmarried man. Lutwak and Maria were divorced on March 31, 1950. 13 Lutwak and Mrs. Treitler also found two women—Bessie Benjamin Osborne and Grace Klemtner—who were honorably discharged veterans of World War II, and who were willing to marry Munio and Leopold so that the brothers could come to the United States. Bessie Osborne was introduced to Treitler by Lutwak, and went to Paris accompanied by Treitler. There she went through a pretended marriage ceremony with Munio Knoll, and on their arrival at New York City, Munio was admitted on November 13, 1947, on the representation that he was married to Bessie Osborne. The marriage was never consummated and was never intended to be. The parties separated after entering the United States, and they never lived together as husband and wife at any time. Bessie Osborne's suit for divorce from Munio was pending at the time of the trial. 14 Still later, Grace Klemtner, who was also a World War II veteran and an acquaintance of Regina Treitler, went to Paris and went through a pretended marriage ceremony with Leopold. They then traveled to the United States, where Leopold was admitted on December 5, 1947, upon the representation that he was the husband of Grace Klemtner. They immediately separated after their entry into this country, and they never lived together as husband and wife at any time until about the time Grace Klemtner appeared before the grand jury which returned the indictment. This was approximately April 1, 1950, more than two years after the marriage ceremony in Paris. Bessie Osborne and Grace Klemtner received a substantial fee for participating in these marriage ceremonies. 15 There is an abundance of evidence in this record of a conspiracy to contract spurious, phony marriages for the purposes of deceiving the immigration authorities and thereby perpetrating a fraud upon the United States, and of a conspiracy to commit other offenses against the United States. 16 Petitioners present three principal contentions: (1) Their conspiracy was not unlawful because the marriages involved were valid marriages; (2) The trial court erred in permitting the ostensible wives of these marriages to testify against their so-called husbands; and (3) The trial court erred in admitting testimony of various acts and declarations of different petitioners, done and said after the conspiracy had ended, without limiting the evidence to the particular defendant who performed the act or made the statement. I. 17 At the trial, it was undisputed that Maria, Munio and Leopold had gone through formal marriage ceremonies with Lutwak, Bess Osborne and Grace Klemtner, respectively. Petitioners contended that, regardless of the intentions of the parties at the time of the ceremonies, the fact that the ceremonies were performed was sufficient to establish the validity of the marriages, at least until the Government proved their invalidity under French law. They relied on the general American rule of conflict of laws that a marriage valid where celebrated is valid everywhere unless it is incestuous, polygamous, or otherwise declared void by statute. See Loughran v. Loughran, 292 U.S. 216, 223, 54 S.Ct. 684, 686, 78 L.Ed. 1219; Restatement, Conflict of Laws, §§ 121, 132—134. Neither side presented any evidence of the French law, and the trial court ruled that in the absence of such evidence, the French law would be presumed to be the same as American law. The court later instructed the jury that 'if the subjects agree to a marriage only for the sake of representing it as such to the outside world and with the understanding that they will put an end to it as soon as it has served its purpose to deceive, they have never really agreed to be married at all.' The petitioners claim that the trial court erred in presuming that the French law relating to the validity of marriages is the same as American law, and they further contend that even under American law these marriages are valid. 18 We do not believe that the validity of the marriages is material. No one is being prosecuted for an offense against the marital relation. We consider the marriage ceremonies only as a part of the conspiracy to defraud the United States and to commit offenses against the United States. In the circumstances of this case, the ceremonies were only a step in the fraudulent scheme and actions taken by the parties to the conspiracy. By directing in the War Brides Act that 'alien spouses' of citizen war reterans should be admitted into this country, Congress intended to make it possible for veterans who had married aliens to have their families join them in this country without the long delay involved in qualifying under the proper immigration quota. Congress did not intend to provide aliens with an easy means of circumventing the quota system by fake marriages in which neither of the parties ever intended to enter into the marital relationship; that petitioners so believed is evidenced by their care in concealing from the immigration authorities that the ostensible husbands and wives were to separate immediately after their entry into this country and were never to live together as husband and wife. The common understanding of a marriage, which Congress must have had in mind when it made provision for 'alien spouses' in the War Brides Act, is that the two parties have undertaken to establish a life together and assume certain duties and obligations. Such was not the case here, or so the jury might reasonably have found. Thus, when one of the aliens stated that he was married, and omitted to explain the true nature of his marital relationship, his statement did, and was intended to, carry with it implications of a state of facts which were not in fact true. 19 Because the validity of the marriages is nor material, the cases involving so-called limited purpose marriages,1 cited by petitioners to support their contention that the marriages in the instant case are valid, are inapplicable. All of those cases are suits for annulment in which the court was requested to grant relief to one of the parties to a marriage on the basis of his own admission that the marriage had been a sham. Where the annulment was denied, one or more of the following factors influenced the court: (1) A reluctance to permit the parties to use the annulment procedure as a quick and painless substitute for divorce, particularly because this might encourage people to marry hastily and inconsiderately; (2) A belief that the parties should not be permitted to use the courts as the means of carrying out their own secret schemes; and (3) A desire to prevent injury to innocent third parties, particularly children of the marriage. These factors have no application in the circumstances of the instant case. Similarly inapplicable are the cases where a marriage was entered into in order to render the wife incompetent to testify against her husband in a pending trial because in none of those cases was it proved that the parties to the marriage did not intend to enter into the marital relationship in good faith.2 Much more cosely related is the case of United States v. Rubenstein, 2 Cir., 151 F.2d 915, 918—919, in which the court held that where two persons entered into a marriage solely for the purpose of facilitating the woman's entry into this country, and with no intention by either party to enter into the marriage relationship as it is commonly understood, for the purposes of that case they were never married at all. In the instant case, as in the Rubenstein case, there was no good faith—no intention to marry and consummate the marriages even for a day. With the legal consequences of such ceremonies under other circumstances, either in the United States or France, we are not concerned. II. 20 Much of the evidence of the conspiracy comes from the lips of the so-called wives of these spurious marriages. The next question with which we are confronted is whether these so-called wives are competent to testify against their purported husbands in this criminal prosecution and thus incriminate the so-called husbands. 21 Civil marriage ceremonies were entered into by the parties in Paris as above indicated. Must these ostensible marriages be recognized as creating spouses in order that the marital relationship may be claimed to prevent the wives from testifying against the husbands? At common law the wife could testify neither for nor against her husband in a criminal case, but since Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369, the wife may testify in favor of the husband. 22 A review in the Funk case of the cases in this Court revealed the inconsistencies of the rule which made a wife incompetent to testify on behalf of her husband, and this Court resolved the question in favor of competency. The Funk case left the rules of evidence as to the competency of witnesses to be formulated by the federal courts or Congress in accordance with reason and experience. Wolfle v. United States, 291 U.S. 7, 12, 54 S.Ct. 279, 78 L.Ed. 617. There followed the promulgation by this Court of Rule 26 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which reads as follows: 23 'Rule 26. Evidence. 24 '* * * The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.' 25 This rule was a paraphrase of Mr. Justice Stone's statement in Wolfle, 291 U.S. at page 12, 54 S.Ct. 279. 26 Under this rule, the competency of witnesses is to be governed by the principles of the common law as they may be interpreted by the courts in the light of reason and experience. The governing principles are not necessarily as they had existed at common law. Congress has not acted, and has specifically authorized this Court to prescribe rules of criminal procedure, but the rules do not specifically answer the problem here. Therefore, it is open to us to say whether we shall go further and abrogate this common-law rule disqualifying one spouse from testifying in criminal cases against the other spouse. 27 When the good faith of the marital relation is pertinent and it is made to appear to the trial court, as it was here, that the relationship was entered into with no intention of the parties to live together as husband and wife but only for the purpose of using the marriage ceremony in a scheme to defraud, the ostensible spouses are competent to testify against each other. Here again, we are not concerned with the validity or invalidity of these so-called marriages. We are concerned only with the application of a common-law principle of evidence to the circumstances of this case. In interpreting the common law in this instance, we are to determine whether 'in the light of reason and experience' we should interpret the common law so as to make these ostensible wives competent to testify against their ostensible husbands. The reason for the rule at common law disqualifying the wife is to protect the sanctity and tranquility of the marital relationship. It is hollow mockery for the petitioners in arguing for the policy of the rule to invoke the reason for the rule and to say to us 'the husband and wife have grown closer together as an emotional, social, and cultural unit' and to speak of 'the close emotional ties between husband and wife' and of 'the special protection society affords to the marriage relationship.' In a sham, phony, empty ceremony such as the parties went through in this case, the reason for the rule disqualifying a spouse from giving testimony disappears, and with it the rule. 28 'It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.' Funk v. United States, supra, 290 U.S. at page 383, 54 S.Ct. at page 216. 29 The light of reason and experience do not compel us to so interpret the common law as to disqualify these ostensible spouses from testifying in this case. We therefore hold that in the circumstances of this case, the common-law rule prohibiting antispousal testimony has no application. These ostensible wives were competent to testify. III. 30 Most of the evidence in this case consisted of testimony of the acts and declarations of the defendants. The petitioners contend that because some of these acts and declarations took place after the conspiracy ended, they were erroneously admitted without being properly limited to the defendant who did the act or made the statement testified to. We must, therefore, decide when the conspiracy ended. The petitioners contend it ended when the last of the parties, Leopold Knoll, was admitted to the United States on December 5, 1947. Then and there, they say, the fraud if any was complete, and the conspiracy to violate the statutes was complete. The Government contends that a part of the conspiracy was an agreement among the conspirators to conceal their fraud by any means, and so it was alleged in the indictment. 31 But there is no statement in the indictment of a single overt act of concealment that was committed after December 5, 1947, and no substantial evidence of any. Such acts as were set forth and proved were acts that revealed and did not conceal the fraud. Therefore, there is no evidence in the record to establish as a part of the conspiracy that the conspirators agreed to conceal the conspiracy by doing what was necessary and expedient to prevent its disclosure. There was a statement of Munio Knoll in the record to one witness Haberman that indicated Munio's purpose to cover up and conceal the conspiracy. This is not evidence that the conspiracy included the further agreement to conceal. It is in the nature of an afterthought by the conspirator for the purpose of covering up. The trial court so understood it, and this statement of Munio Knoll, as testified to by Haberman, was limited by the Court as applicable against Munio Knoll only. 32 This Court in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790, rejected the Government's contention that in every conspiracy there is implicit an agreement as a part thereof for the conspirators to collaborate to conceal the conspiracy. 33 'The rule contended for by the Government could have far-reaching results. For under this rule plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in evidence tended to shield co-conspirators. We are not persuaded to adopt the Government's implicit conspiracy theory which in all criminal conspiracy cases would create automatically a further breach of the general rule against the admission of hearsay evidence.' 336 U.S. at page 444, 69 S.Ct. at page 719. 34 While the concealment was alleged in this indictment as a part of the conspiracy, it was not proved. We think on this record that the conspiracy ended December 5, 1947. 35 It does not necessarily follow that acts and declarations made after the conspiracy ended are not admissible. In this case, the essential fact of the conspiracy was the existence of phony marriage ceremonies entered into for the sole purpose of deceiving the immigration authorities and perpetrating a fraud upon the United States. Acts which took place after the conspiracy ended which were relevant to show the spuriousness of the marriages and the intent of the parties in going through the marriage ceremonies were competent—such as the fact that the parties continued to live apart after they came to the United States; that money was paid the so-called wives as a consideration for their part in the so-called marriages; and that suits were started to terminate whatever legal relationship there might have been upon the record. 36 Declarations stand on a different footing. Declarations of one conspirator may be used against the other conspirator not present on the theory that the declarant is the agent of the other, and the admissions of one are admissible against both under a standard exception to the hearsay rule applicable to the statements of a party. Clune v. United States, 159 U.S. 590, 593, 16 S.Ct. 125, 126, 40 L.Ed. 269. See United States v. Gooding, 12 Wheat. 460, 468—470, 6 L.Ed. 693. But such declaration can be used against the co-conspirator only when made in furtherance of the conspiracy. Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 227, 91 L.Ed. 196; Logan v. United States, 144 U.S. 263, 308 309, 12 S.Ct. 617, 631—632, 36 L.Ed. 429. There can be no furtherance of a conspiracy that has ended. Therefore, the declarations of a conspirator do not bind the co-conspirator if made after the conspiracy has ended. That is the teaching of Krulewitch v. United States, supra, and Fiswick v. United States, supra. Those cases dealt only with declarations of one conspirator after the conspiracy had ended. They had no application to acts of a conspirator or others which were relevant to prove the conspiracy. True, there is dictum in Logan v. United States, supra, 144 U.S. at page 309, 12 S.Ct. 632, frequently repeated, which would limit the admissibility of both acts and declarations to the person performing them. This statement of the rule overlooks the fact that the objection to the declarations is that they are hearsay. This reason is not applicable to acts which are not intended to be a means of expression. The acts, being relevant to prove the conspiracy, were admissible, even though they might have occurred after the conspiracy ended. United States v. Rubenstein, 2 Cir., 151 F.2d 915, 917—918; see Fitzpatrick v. United States, 178 U.S. 304, 312—313, 20 S.Ct. 944, 947, 44 L.Ed. 1078; Ferris v. United States, 9 Cir., 40 F.2d 837, 839. 37 Relevant declarations or admissions of a conspirator made in the absence of the co-conspirator, and not in furtherance of the conspiracy, may be admissible in a trial for conspiracy as against the declarant to prove the declarant's participation therein. The court must be careful at the time of the admission and by its instructions to make it clear that the evidence is limited as against the declarant only. Therefore, when the trial court admits against all of the conspirators a relevant declaration of one of the conspirators after the conspiracy has ended, without limiting it to the declarant, it violates the rule laid down in Krulewitch. Such declaration is inadmissible as to all but the declarant. 38 In the trial of a criminal case for conspiracy, it is inevitable that there shall be, as there was in this case, evidence as to declarations that is admissible as against all of the alleged conspirators; there are also other declarations admissible only as to the declarant and those present who by their silence or other conduct assent to the truth of the declaration. These declarations must be carefully and clearly limited by the court at the time of their admission and the jury instructed as to such declarations and the limitations put upon them. Even then, in most instances of a conspiracy trial of several persons together, the application of the rule places a heavy burden upon the jurors to keep in mind the admission of certain declarations and to whom they have been restricted and in some instances for what specific purpose. While these difficulties have been pointed out in several cases, e.g., Krulewitch v. United States, supra, 336 U.S. at page 453, 69 S.Ct. 723 (concurring opinion); Blumenthal v. United States, 332 U.S. 539, 559—560, 68 S.Ct. 248, 257, 92 L.Ed. 154; Nash v. United States, 2 Cir., 54 F.2d 1006, 1006—1007, the rule has nonetheless been applied. Blumenthal v. United States, supra; Nash v. United States, supra; United States v. Gottfried, 2 Cir., 165 F.2d 360, 367. 39 In our search of this record, we have found only one instance where a declaration made after the conspiracy had ended was admitted against all of the alleged conspirators, even though not present when the declaration was made.3 Was the admission of this one item of hearsay evidence sufficient to reverse this case? 40 We think not. In view of the fact that this record fairly shrieks the guilt of the parties, we cannot conceive how this one admission could have possibly influenced this jury to reach an improper verdict. A defendant is entitled to a fair trial but not a perfect one. This is a proper case for the application of Rule 52(a) of the Federal Rules of Criminal Procedure.4 We hold that the error was harmless. 41 Finding no reversible error in this record, the judgment is affirmed. 42 Affirmed. 43 Mr. Justice JACKSON, whom Mr. Justice BLACK and Mr. Justice FRANKFURTER join, dissenting. 44 Whenever a court has a case where behavior that obviously is sordid can be proved to be criminal only with great difficulty, the effort to bridge the gap is apt to produce bad law. We are concerned about the effect of this decision in three respects. 45 1. We are not convinced that any crime has been proved, even on the assumption that all evidence in the record was admissible. These marriages were formally contracted in France, and there is no contention that they were forbidden or illegal there for any reason. It is admitted that some judicial procedure is necessary if the parties wish to be relieved of their obligations. Whether by reason of the reservations with which the parties entered into the marriages they could be annulled may be a nice question of French law, in view of the fact that no one of them deceived the other. We should expect it to be an even nicer question whether a third party, such as the state in a criminal process, could simply ignore the ceremony and its consequences, as the Government does here. 46 We start with marriages that either are valid or at least have not been proved to be invalid in their inception. The Court brushes this question aside as immaterial, but we think it goes to the very existence of an offense. If the parties are validly married, even though the marriage is a sordid one, we should suppose that would end the case. On the other hand, if the marriage ceremonies were for some reason utterly void and held for naught, as if they never had happened, the Government could well claim that entry into the United States as married persons was fraud. But between these two extremes is the more likely case—marriages that are not void but perhaps voidable. In one of these cases, the parties (on the trial) expressed their desire to stay married, and they were acquitted; and no one contends that their marriage is void. Certainly if these marriages were merely voidable and had not been adjudged void at the time of the entry into this country, it was not a fraud a represent them as subsisting. We should think that the parties to them might have been prosecuted with as much reason if they had represented themselves to be single. Marriages of convenience are not uncommon and it cannot be that we would hold it a fraud for one who has contracted a marriage not forbidden by law to represent himself as wedded, even if there were grounds for annulment or divorce and proceedings to that end were contemplated. 47 The effect of any reservations of the parties in contracting the marriages would seem to be governed by the law of France. It does not seem justifiable to assume what we all know is not true that French law and our law are the same. Such a view ignores some of the most elementary facts of legal history—the French reception of Roman law, the consequences of the Revolution, and the Napoleonic codifications. If the Government contends that these marriages were ineffectual from the beginning, it would seem to require proof of particular rules of the French law of domestic relations. 48 2. 'The federal courts have held that one spouse cannot testify against the other unless the defendant spouse waives the privilege. * * *' Griffin v. United States, 336 U.S. 704, 714, 69 S.Ct. 814, 819, 93 L.Ed. 993, and cases cited. The Court condones a departure from this rule here because, it says, the relationship was not genuine. We need not decide what effect it would have on the privilege if independent testimony established that the matrimonial relationship was only nominal. Even then, we would think the formal relationship would be respected unless the trial court, on the question of privilege, wanted to try a collateral issue. However, in this case, the trial court could only conclude that the marriage was a sham from the very testimony whose admissibility is in question. The Court's position seems to be that privileged testimony may be received to destroy its own privilege. We think this is not allowable, for the same reason that one cannot lift himself by his own bootstraps. 49 3. We agree with the Court that the crime, if any, was complete when the alien parties obtained entry into the United States on December 5. We think this was the necessary result of the holding in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. This requires rejection of the Government's contention that every conspiracy includes an implied secondary conspiracy to conceal the facts. This revival of the long-discredited doctrine of constructive conspiracy would postpone operation of the statute of limitations indefinitely and make all manner of subsequent acts and statements by each conspirator admissible in evidence against all. But, while the Court accepts the view or Krulewitch, we think its ruling on subsequent acts and declarations largely nullifies the effect of that decision and exemplifies the dangers pointed out therein. 50 For present purposes, we need not maintain that no admission or act of a conspirator occurring after the conspiracy has accomplished its object is admissible against a co-conspirator. And we do not question that at times such evidence is admissible against the actor of speaker alone. But one of the additional leverages obtained by the prosecution through proceeding as for conspiracy instead of as for the substantive offense is that it may get into evidence against one defendant acts or omissions which color the case against all. 51 This case is a vivid illustration of that process in action. The statement of facts in the Government's brief is punctuated by eight separate footnotes to explain that the testimony recited in the text was limited to one or another defendant. We doubt that any member of this Court, despite our experience in sifting testimony, can carry in mind what was admitted against whom, and we are confident the jury could not. We will not prolong this opinion with an analysis of this testimony. Some of it was very damaging. For example, testimony was admitted, limited to Munio Knoll, that on one occasion he returned to his apartment and had difficulty getting in. When he gained admittance, petitioner Lutwak was going out through the window, leaving Knoll's wife to explain the phenomenon if she could. This testimony was not admitted against Lutwak, and the jury was adequately warned not to use it against him. But does anybody believe that the jury could forget that picture of Lutwak being caught taking hasty leave of his co-conspirator's wife and making a somewhat irregular exit? The salutary rule that evidence of acts which occurred long after the conspiracy terminated is admissible only against particular defendants should be observed in spirit as well as in letter. Here much of such evidence was of such remote probative value, and the instruction limiting its use was so predictably ineffectual, that its admission violated a substantial right of those defendants against whom it could not be used. 52 For these reasons we are impelled to dissent. 1 E.g., Schibi v. Schibi, 136 Conn. 196, 69 A.2d 831, 14 A.L.R.2d 620; Hanson v. Hanson, 287 Mass. 154, 191 N.E. 673, 93 A.L.R. 701. These and the other cases cited by petitioners are collected and discussed in a note, 14 A.L.R.2d 624 (1950). 2 E.g., Norman v. State, 127 Tenn. 340, 155 S.W. 135, 45 L.R.A., N.S., 399; State v. Frey, 76 Minn. 526, 79 N.W. 518. 3 R. 208—209. Bessie Osborne testified: 'I asked when action would be taken for divorce and (Munio Knoll) asked me if I would wait two years because he wanted to become an American citizen, and it would take that long, and I agreed to wait.' This hearsay statement attributed to Munio was admitted against all the defendants. 4 '(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.'
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344 U.S. 630 73 S.Ct. 459 97 L.Ed. 622 UNITED STATESv.LANE MOTOR CO. No. 499. Decided Feb. 9, 1953. Mr. Walter J. Cummings, Jr., Solicitor General of the United States, Washington, D.C., for petitioner. Mr. Paul Harkey, Idabel, Okl., for respondent. PER CURIAM. 1 In this proceeding, the Government sought the forfeiture of an automobile and of a truck under the provisions of § 3116 of the Internal Revenue Code, 26 U.S.C.A. § 3116, in the District Court for the Eastern District of Oklahoma. That Section allows the seizure and forfeiture of property 'intended for use in violating' the alcohol tax laws, as well as property 'which has been so used'. The respondent, alleging an interest in the two vehicles, contested the forfeitures. 2 The district judge found the facts to be that the truck and automobile had each been used by the operator of an illegal distillery to drive a number of miles from his home and then parked at a point one-half mile or more from the distillery, the operator walking the rest of the way. The district judge found that the Government had not shown, as it had been alleged, that the vehicles had been used for transporting materials or utensils for use at the distillery, and ruled that the facts shown did not justify a forfeiture. The Court of Appeals for the Tenth Circuit affirmed, 199 F.2d 495. 3 The Government has petitioned for a writ of certiorari showing that, while the Court of Appeals for the Third Circuit in United States v. One 1948 Plymouth Sedan, 1952, 198 F.2d 399, held in accord with the Tenth Circuit, the Court of Appeals for the Sixth Circuit has taken a contrary view, United States v. One 1950 Ford Half-Ton Pickup Automobile Truck, 1952, 195 F.2d 857. Certiorari is granted in order to resolve this conflict. 4 We think it clear that a vehicle used solely for commuting to an illegal distillery is not used in violating the revenue laws. 5 Certiorari granted, and the judgment affirmed.
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344 U.S. 624 73 S.Ct. 465 97 L.Ed. 617 HOWARD et al.v.COMMISSIONERS OF SINKING FUND OF CITY OF LOUISVILLE et al. No. 295. Argued Jan. 12, 1953. Decided Feb. 9, 1953. Messrs. W. A. Armstrong and Donald E. Armstrong, Louisville, Ky., for appellants. Messrs. Gilbert Burnett and Alex P. Humphrey, Louisville, Ky., for appellees. Mr. Justice MINTON delivered the opinion of the Court. 1 Two questions are presented by this appeal: (1) The validity of the annexation by the City of Louisville, Kentucky, of certain federally owned land on which a Naval Ordnance Plant is located; and (2) The validity of the Louisville occupational tax or license fee ordinance as applied to employees of this Ordnance Plant. 2 By condemnation proceedings filed in 1940, the United States acquired the land on which the Ordnance Plant is located, with the consent of the Legislature of Kentucky given in a general statute.1 In 1941, the Secretary of the Navy on behalf of the United States accepted exclusive jurisdiction over the area, and the Governor of Kentucky acknowledged this acceptance. By ordinances enacted in 1947 and 1950, the City annexed certain territory, including the Ordnance Plant tract. The annexation was not challenged by the United States. After the annexation, the City started to collect from employees of the plant a license tax for the privilege of working in the city, measured by one percent of all salaries, wages and commissions earned in the city.2 3 The appellants, employees of the Ordnance Plant, sued in the Jefferson Circuit Court of Kentucky on behalf of themselves and others similarly situated for a declaratory judgment that the Ordnance Plant is not within the City and therefore the employees are not subject to the tax levied on them by the City, and for an injunction restraining the collection of the tax. The appellees filed a special and a general demurrer which were overruled by the court. The appellees having refused to plead further, the court granted judgment in favor of the appellants on the pleadings, holding that the appellants were not subject to the tax because the area occupied by the United States could not be annexed by the City since it ceased to be a part of the Commonwealth of Kentucky when exclusive jurisdiction over it was acquired by the United States. Enforcement of the taxing ordinance was enjoined. The Court of Appeals of Kentucky reversed, 248 S.W.2d 340, the Circuit Court accordingly entered judgment for the appellees, and the Court of Appeals affirmed, 249 S.W.2d 816. We noted probable jurisdiction. 4 The appellants first contend that the City could not annex this federal area because it had ceased to be a part of Kentucky when the United States assumed exclusive jurisdiction over it. With this we do not agree. When the United States, with the consent of Kentucky, acquired the property upon which the Ordnance Plant is located, the property did not cease to be a part of Kentucky. The geographical structure of Kentucky remained the same. In rearranging the structural divisions of the Commonwealth, in accordance with state law, the area became a part of the City of Louisville, just as it remained a part of the County of Jefferson and the Commonwealth of Kentucky. A state may conform its municipal structures to its own plan, so long as the state does not interfere with the exercise of jurisdiction within the federal area by the United States. Kentucky's consent to this acquisition gave the United States power to exercise exclusive jurisdiction within the area. A change of municipal boundaries did not interfere in the least with the jurisdiction of the United States within the area or with its use or disposition of the property. The fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries, so long as there is no interference with the jurisdiction asserted by the Federal Government. The sovereign rights in this dual relationship are not antagonistic. Accommodation and cooperation are their aim. It is friction, not fiction, to which we must give heed. 5 This question has been before other state courts, and the right to annex has been upheld. Wichita Falls v. Bowen, 143 Tex. 45, 52, 182 S.W.2d 695, 699, 154 A.L.R. 1434; County of Norfolk v. City of Portsmouth, 186 Va. 1032, 1047, 45 S.E.2d 136, 142—143. We agree with these cases and hold that Louisville was free to annex the Ordnance Plant area. 6 Even though the Ordnance Plant is within the boundaries of the City of Louisville pursuant to the annexation, exclusive jurisdiction over the area still remains with the United States, except as modified by statute. U.S.Const., Art. I, § 8, cl. 17; Surplus Trading Co. v. Cook, 281 U.S. 647, 652, 50 S.Ct. 455, 74 L.Ed. 1091. Within this jurisdiction, the right to tax income paid to employees of the Government who worked at the Ordnance Plant was granted by 4 U.S.C. §§ 105—110, 4 U.S.C.A. §§ 105—110, known as the Buck Act. Section 106 of this Act reads as follows: 7 's 106. Same; income tax 8 '(a) No person shall be relieved from liability for any income tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, by reason of his residing within a Federal area or receiving income from transactions occurring or services performed in such area; and such State or taxing authority shall have full jurisdiction and power to levy and collect such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area. 9 '(b) The provisions of subsection (a) shall be applicable only with respect to income or receipts received after December 31, 1940.' 4 U.S.C. (Supp. V) § 106, 4 U.S.C.A. § 106. 10 Section 110(c) defines 'income tax' as follows: 11 '(c) The term 'income tax' means any tax levied on, with respect to, or measured by, net income, gross income, or gross receipts.' 4 U.S.C. (Supp. V) § 110(c), 4 U.S.C.A. § 110(c). 12 Thus the right is specifically granted to the City of Louisville as a taxing authority of Kentucky to levy and collect a tax measured by the income or earnings of any party 'receiving income from transactions occurring or services performed in such area * * * to the same extent and with the same effect as though such area was not a Federal area.' In other words, Kentucky was free to tax earnings just as if the Federal Government were not there. 13 But the appellants next argue that the Court of Appeals erred in holding that the City's occupational tax or license fee was an 'income tax' within the meaning of the Buck Act, though holding that this tax or fee was not an income tax under the Constitution of Kentucky. 14 Was this tax an 'income tax' within the meaning of the Buck Act? In a prior case, Kentucky had held this tax was not an 'income tax' within the meaning of the Constitution of Kentucky but was a tax upon the privilege of working within the City of Louisville. City of Louisville v. Sebree, 308 Ky. 420, 429—431, 214 S.W.2d 248, 253—254. But the right to tax earnings within the area was not given Kentucky in accordance with the Kentucky law as to what is an income tax. The grant was given within the definition of the Buck Act, and this was for any tax measured by net income, gross income, or gross receipts. In the instant case, the Kentucky Court of Appeals correctly stated that the question was whether the tax was an income tax within the meaning of the federal law. We hold that the tax authorized by this ordinance was an income tax within the meaning of the Buck Act. The City, it is conceded, can levy such a tax within its boundaries outside the federal area. By virtue of the Buck Act, the tax can be levied and collected within the federal area, just as if it were not a federal area. 15 Since the area is within the boundaries of the City of Louisville, and this tax is an income tax within the meaning of the Buck Act, the tax is valid. The judgment is affirmed. 16 Affirmed. 17 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 18 I have not been able to follow the argument that this tax is an 'income tax' within the meaning of the Buck Act. It is by its terms a 'license fee' levied on 'the privilege' of engaging in certain activities. The tax is narrowly confined to salaries, wages, commissions and to the net profits of businesses, professions, and occupations. Many kinds of income are excluded, e.g., dividends, interests, capital gains. The excllusions emphasize that the tax is on the privilege of working or doing business in Louisville. That is the kind of a tax the Kentucky Court of Appeals held it to be. City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248. The Congress has not yet granted local authorities the right to tax the privilege of working for or doing business with the United States. 1 '3.010. Consent of state to acquisition of lands. The Commonwealth of Kentucky consents to the acquisition by the United States of all lands and appurtenances in this state heretofore legally acquired, or that may be hereafter legally acquired by purchase, or by condemnation, for the erection of forts, magazines, arsenals, dock yards, post offices, custom houses, courthouses and other needful buildings, and for locks, dams and canals in improving the navigation of the rivers and waters within and on the borders of Kentucky.' Ky.Rev.Stat.1948. 2 'On and after July 1, 1950, every person, association, corporation, or other entity engaged in any occupation, trade, profession, or other activity in the City shall pay into the Sinking Fund of the City for the purposes set forth under Section 91.200 of the Kentucky Revised Statutes as amended by an Act of the General Assembly of 1950, an annual license fee for the privilege of engaging in said activities, which license fee shall be measured by one per centum of (a) all salaries, wages, commissions and other compensation earned by every person in the City for work done or services performed or rendered in the City; and (b) the net profits of all businesses, professions, or occupations from activities conducted in the City.' Ordinance 83, Series 1950, City of Louisville.
910
344 U.S. 561 73 S.Ct. 391 97 L.Ed. 549 UNITED STATES ex rel. SMITHv.BALDI, Superintendent, Philadelphia County Prison. No. 31. Re-Argued Oct. 13—14, 1952. Decided Feb. 9, 1953. Mr. Thomas D. McBride, Philadelphia, Pa., for petitioner. Mr. Randolph C. Ryder, Lancaster, Pa., for respondent. Mr. Justice REED delivered the opinion of the Court. 1 Petitioner was convicted of murder and sentenced to death by the State of Pennsylvania. The crime was committed in January 1948. Petitioner was without counsel when he appeared for arraignment on February 25, 1948. The presiding judge asked a lawyer present in the courtroom to advise petitioner how to plead. This lawyer, who knew nothing about petitioner, advised him to enter a plea of 'not guilty.' On September 21, 1948, after several continuances, the District Attorney together with petitioner's state-named counsel, who had been appointed after arraignment, and a judge of the sentencing court, agreed that a plea of 'guilty' would be substituted for the earlier plea of 'not guilty.' This was done so that the State could present its evidence that the crime was first degree murder, and petitioner's counsel would then have additional time in which to procure out-of-state evidence at State expense to support the contention that petitioner was insane. The State put in its evidence on September 21, 1948. At hearings held on October 28, 1948, and November 5, 1948, defense counsel introduced evidence tending to show that petitioner was insane. The sentencing court was not satisfied by the evidence that petitioner had been insane either at the time of the murder or at any time thereafter, and on February 4, 1949, sentenced him to death. 2 While the docket entries § shown in the trial record differ from the notes on the indictment, as to whether the sentencing court found petitioner guilty of first degree murder on September 21, 1948, or did not so find until February 4, 1949, the difference is immaterial. According to the entries written in longhand on petitioner's indictment, 192 F.2d at page 569, the entry noting the adjudication of guilty of murder in the first degree on February 4, 1949, is not in proper order. It appears to have been inserted between the entry stating that petitioner had withdrawn his plea of not guilty and entered a plea of guilty on September 21, 1948, and the entry of November 5, 1948, stating that 'additional testimony (had been) heard and held under advisement.' If the contested and out-of-order date of '2/4/49' is removed, the notes on the indictment would agree with the docket entry of September 21, 1948, and would read '(A)fter hearing testimony both for the Commonwealth and the defendant * * * the defendant is adjudged guilty of murder in the first degree.'1 Since the entry of September 21, 1948, was made following a plea of guilty and with opportunity for further evidence as to insanity, it was not in any way binding or even persuasive. It was the sentence on February 4, 1949, after the insanity hearing that was the final adjudication. 3 An appeal was taken from this judgment on a full record to the State Supreme Court where it was asserted that it was an abuse of discretion by the sentencing court to have imposed the death sentence in the circumstances of the case. The conviction was affirmed. 362 Pa. 222, 66 A.2d 764. No effort was made to secure from this Court a writ of certiorari to review that affirmance. Petitioner thereafter filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The petition was denied on the ground that petitioner was not within the jurisdiction of the court at the time the proceeding was instituted. United States ex rel. Smith v. Warden of Philadelphia County Prison, 87 F.Supp. 339. On appeal the denial was affirmed by the Court of Appeals for the Third Circuit. 181 F.2d 847. No petition for certiorari to review that decision was filed with this Court. A petition for habeas corpus was then filed in the State Supreme Court. This was entertained on the merits and denied on the ground that there was no denial of due process of law and there 'was nothing in this record which convinces us that this relator was insane when he committed the murder charged or when he pleaded guilty or at the time he was sentenced to death.' 364 Pa. 93, at page 119, 71 A.2d 107, at page 120. Immediately following our denial of a timely petition for certiorari, 340 U.S. 812, 71 S.Ct. 40, 95 L.Ed. 597, petitioner filed a second application for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The District Court dismissed the petition noting that all the issues presented in the petition had been before the State Supreme Court 96 F.Supp. 100, 105. On appeal the Court of Appeals for the Third Circuit affirmed. 192 F.2d 540. We granted certiorari, 343 U.S. 903, 72 S.Ct. 639, 96 L.Ed. 1322. The petitions involved in the State habeas corpus proceedings presented the identical due process questions which are before us now, and the complete record of the State trial proceedings appellate as well as those in State habeas corpus—were before the District Court and the Court of Appeals. 4 The first point we consider is the question of the effect to be given our denial of certiorari in a habeas corpus case. Both the District Court, 96 F.Supp. 100, 105, and the Court of Appeals, 192 F.2d 540, 544, concluded that the denial of certiorari in habeas corpus cases means nothing except that certiorari was denied. 343 U.S. 903, 72 S.Ct. 639, 96 L.Ed. 1322. As the effect of a denial of certiorari was then in doubt, we granted this petition primarily to determine its effect. As this conclusion is spelled out more fully in the opinions in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 437, the answer is short. Our denial of certiorari in habeas corpus cases is without substantive significance. 5 The next contention of petitioner is that he was denied due process. In substance, this issue presents questions as to (1) whether the State should have allowed him to plead guilty without having first formally adjudicated the question of his mental competency and (2) whether it should have permitted him to plead at all to a capital offense without affording him the technical services of a psychiatrist. 6 Petitioner had been committed to an institution for mental patients in New York three years prior to the commission of the crime with which he is charged. At the New York institution his disease was diagnosed as dementia praecox. After four months he was discharged as recovered. Later, he voluntarily committed himself to the Philadelphia General Hospital for fear that he might harm someone. Ten days later he was released because there was 'no evidence of (his) having any psychosis.' These facts were presented to the trial court prior to sentencing on February 4, 1949. 7 In contending that Pennsylvania denied him due process by convicting him of murder on his plea of guilty without an adjudication or evidence as to his sanity, petitioner points to language used by the State Supreme Court indicating, in his view, a holding of sanity based on the plea of guilty, instead of on evidence. There that court stated that the plea of guilty was an admission of sanity, and that the evidence of petitioner's mental condition taken by the trial court after the plea of guilty went to the question of the appropriate penalty.2 The complete answer to petitioner's contentions, however, is found in the succeeding paragraph where the court said: 8 'If the evidence taken as to the defendant's mental condition for the purpose of enabling the court to assess the proper punishment, raised a substantial doubt as to Smith's sanity, it would have been the duty of his counsel to have moved to withdraw the plea of guilty so that a plea of 'not guilty because of insanity' could be entered. If the trial court had denied this motion the defendant could have taken an exception and on appeal this court would have decided whether or not the court in denying the motion had abused its discretion.' 364 Pa. 93, at page 113, 71 A.2d 107, at page 117. 9 Petitioner furthermore maintains that the sentence imposed violates due process because he was advised to plead 'not guilty' at arraignment on the snap advice of a court-designated lawyer who had never before laid eyes on petitioner. As a consequence of this off-hand plea of not guilty, petitioner contends he lost his only chance to require that his mental competency be tried at the outset by a jury.3 10 Assuming that such a chance was in fact lost, it does not follow that due process was denied. As pointed out above, the Pennsylvania Supreme Court emphasized that even after changing his plea to 'guilty' on the advice of counsel familiar with this case, there was still adequate opportunity to withdraw the second plea and substitute a plea of 'not guilty because of insanity' had petitioner's counsel entertained any doubt of his client's mental competency. 364 Pa. at page 113, 71 A.2d at page 117. When Pennsylvania furnished petitioner counsel for his arraignment, we cannot say his error in advising a 'not guilty' plea made all future proceedings unconstitutional when there was ample opportunity to rectify the error, if any there was, by a hearing on insanity. A claim of denial of due process can hardly be predicated upon the failure of a defense move. 11 This brings us to petitioner's second point: That the assistance of a psychiatrist was necessary to afford him adequate counsel. The record of the trial-court proceedings reveals that on November 5, 1948, a psychiatrist, who had examined petitioner at the court's request, testified as to petitioner's sanity at the time of the trial and at the time of the commission of the crime. In addition, on October, 28, 1948, two other psychiatrists were called by the defense to testify as to petitioner's mental competence. On the same day petitioner's counsel also introduced various reports and letters dealing with his client's mental history. On this evidence the court determined his sanity. Petitioner further asserts that he should have been given technical pretrial assistance by the State. Although the trial judge testified that defense counsel made no such request, petitioner here states that the trial court refused to appoint a psychiatrist to make a pretrial examination. We cannot say that the State has that duty by constitutional mandate. See McGarty v. O'Brien, 1 Cir., 188 F.2d 151, 155. As we have shown, the issue of petitioner's sanity was heard by the trial court. Psychiatrists testified. That suffices. 12 Petitioner's argument that an insane man may not be executed proceeds on the assumption that he has been found to be insane. The law of Pennsylvania, as announced by the Supreme Court of the State, provides full protection against the execution of the insane. 13 'It is a principle imbedded in the common law—and we administer the common law in Pennsylvania—that no insane person can be tried, sentenced or executed. 14 'A prisoner convicted of murder and under sentence of death is (like the relator in the instant case) still in the hands of the law and in a proper case the judiciary of the State can intervene by appropriate means to save an insane prisoner from execution. The judiciary has this power both under the statutes and under the common law.' Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, 116—119, 71 A.2d 107, 118. See Phyle v. Duffy, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494; and Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604. 15 Petitioner's final point is that the United States District Court committed error in refusing to hold a plenary hearing for determination of his sanity. This is refuted by Brown v. Allen, 344 U.S. 443, at pages 460—465, 73 S.Ct. 397, 409—411. 16 In denying the first petition the District Court received evidence from judges of the State trial panel, defense and prosecution counsel and others as to whether a fair hearing on petitioner's sanity had been accorded him by the State. In denying the second petition for habeas corpus the District Court held that not 'unless special circumstances prevail, should the lowest federal court reverse the highest state court in cases where the constitutional issues have been disposed on the merits by the highest state court in an opinion specifically setting forth its reasons that there has been no denial of due process of law, and where the record before the state court and the allegations in the petition for the writ before the federal court fail to disclose that the state in its prosecution departed from constitutional requirements. That is this case.' United States ex rel. Smith v. Baldi, 96 F.Supp. 100, at page 103. 17 This view of the proceedings accords with our holding in the Brown case, supra. As the trial and appellate State court records which were before the District Court show a judicial hearing, where on the plea of guilty the question of sanity at the time of the commission of the crime was canvassed, the sentence does not violate due process. 18 Affirmed. 19 For separate opinion of Mr. Justice FRANKFURTER see 344 U.S. 443, 73 S.Ct. 437. 20 Mr. Justice FRANKFURTER, whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting. 21 Ever since our ancestral common law emerged out of the darkness of its early barbaric days, it has been a postulate of Western civilization that the taking of life by the hand of an insane person is not murder. But the nature and operation of the mind are so elusive to the grasp of the understanding that the basis for formulating standards of criminal responsibility and the means for determining whether those standards are satisfied in a particular case have greatly troubled law and medicine for more than a century. See Glueck, Mental Disorder and The Criminal Law (1925); Abrahamsen, Crime and The Human Mind (1944); Overholser, The Psychiatrist and the Law (to be published in April 1953 by Harcourt Brace & Co.) (particularly Chapter II). To this day, conflict and controversy regarding these problems bedevil the administration of criminal justice. See, e.g., Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382. The deep concern engendered in England just the other day by the case of John Thomas Straffen strikingly disclosed the unsatisfactory state of the law. See The Times, July 22, 1952, p. 3; July 23, 1952, p. 4; July 24, 1952, p. 3; July 25, 1952, p. 3; July 26, 1952, p. 7; August 30, 1952, pp. 2, 5; September 1, 1952, p. 5; September 4, 1952, p. 5; September 12, 1952, p. 7; The Economist, August 30, 1952, p. 494; and The Lancet, August 2, 1952, p. 239. (Especially comments subsequent to the action of the Home Secretary, which followed dismissal of Straffen's appeal by the Court of Criminal Appeal in Regina v. Straffen (1952) 2 Q.B. 911.) 22 The law of Pennsylvania in the abstract on this controversial subject is clear and unassailable. 'It is a principle embedded in the common law—and we administer the common law in Pennsylvania that no insane person can be tried, sentenced or executed.' Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, 116, 71 A.2d 107, 118. In view of the fallibilities of human judgment regarding the same body of evidence it is inevitable that one may be doubtful, and even more than doubtful, whether in a particular case a plea of insanity was properly rejected. It is not for this Court to find a want of due process in a conviction for murder sustained by the highest court of the State merely because a finding that the defendant is sane may raise the gravest doubts. But it is our duty under the Fourteenth Amendment to scrutinize the procedure by which the plea of insanity failed and defendant's life became forfeit. A denial of adequate opportunity to sustain the plea of insanity is a denial of the safeguard of due process in its historical procedural sense which is within the incontrovertible scope of the Due Process Clause of the Fourteenth Amendment. 23 One has only to read the opinions both of the four Judges who constituted the majority of the Court of Appeals and of the three dissenters to appreciate the tangled skein of procedural complexities in which the defendant in this case was hopelessly caught. 192 F.2d 540. And I cannot read the opinion of Chief Judge Biggs, id., at page 549, without being left with such an unrelievable feeling of disquietude as amounts to a conviction that the accused in this case was deprived of a fair opportunity to establish his insanity. And this not the less so because the deprivation resulted from the tangled web that was woven for the defendant, even if unwittingly, by the courts of Pennsylvania. 24 But I am of the view that there is another reason, which in itself is for me conclusive, why this Court should not affirm the judgment below. It is that a new decisive factor, which was introduced for the first time here, requires reconsideration of the disposition below. After the case left the Court of Appeals it came to the knowledge of petitioner's counsel that the court-appointed expert, the professional witness on the issue of insanity on whose testimony the Pennsylvania courts relied, had himself been committed, as of January 12, 1952, because of an incurable mental disease which had deprived him of 'any judgment or insight.' This fact was brought to the notice of this Court in an affidavit not challenged by the respondent, which also averred that 'this intellectual deterioration was evidenced even on a clinical level in January, 1951.' The expert's report on Smith's sanity was made to the sentencing court on November 5, 1948. His disability was not known either to the District Court or the Court of Appeals in February and October, 1951, when they respectively ruled against the petitioner. Even uninformed judges may know that this kind of mental illness does not set in overnight but is the culmination of a long process. Indeed, the medical history, sketchy as it is, revealed by the affidavit filed here demonstrates the gradual manner in which the mental illness in question developed. The extent to which this affidavit vitiates the worth of the expert testimony taken by the sentencing court should not be made a matter of judicial notice. But to allow the victim of this testimony, which, in any event, has been brought into doubt, to go to his death without an opportunity for reassessment, by either State or federal court, of the basis for the rejection of his plea of insanity would constitute a denial of due process no less gross than if the sentence had been imposed without any hearing at all on the issue of sanity. 25 I need hardly point out that in a court of equity causes are disposed of on the facts as they appear at the time of the disposition, and that habeas corpus is certainly to be governed by the rules of fairness enforced in equity. The cause should, therefore, be remanded to the District Court for disposition of the new matter revealed in the affidavit filed here. 26 The Court does not reach this issue. Therefore I do not now decide whether this evidence raises a new ground which must first, under principles of exhaustion, be presented in the State courts or whether the federal court may properly view it simply as new evidence bearing on a claim already exhausted—that the determination of sanity was inadequate. 1 On appeal the Supreme Court of Pennsylvania stated that petitioner had been adjudged guilty of murder in the first degree on the former date, September 21, 1948. Commonwealth v. Smith, 362 Pa. 222, at page 223, 66 A.2d 764. In its opinion denying the subsequent petition for a writ of habeas corpus the Pennsylvania court held that '(w)hether this judgment was entered on September 21, 1948, or on February 4, 1949, is unimportant in these proceedings.' Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, at page 112, 71 A.2d 107, at page 116. 2 'When counsel for the relator entered a plea of guilty to the indictment, that plea admitted to prisoner's sanity because no insane person can be guilty of murder. The testimony relating to Smith's mental condition, taken after the plea had been entered, was for the purpose of providing the court with data which it could use in determining the appropriate penalty to be imposed upon the defendant.' 364 Pa. 93, at page 112, 71 A.2d 107, at page 117. 3 Pennsylvania law provides that counsel may ask for a special trial to test his client's sanity at arraignment. 'The same (lunacy commitment) proceedings may be had, if any person indicted for an offense shall, upon arraignment, be found to be a lunatic, by a jury lawfully impanelled for the purpose, or if, upon the trial of any person so indicted, such person shall appear to the jury charged with such indictment to be a lunatic, the court shall direct such findings to be recorded, and may proceed as aforesaid.' 19 Purdon's Pa.Stat.Ann. § 1352. Whether such a jury trial at the outset will be granted depends on the discretion of the trial judge. He may defer the inquest and allow the question to be decided by the jury trying the indictment. Webber v. Commonwealth, 119 Pa. 223, 13 A. 427; Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611; Commonwealth v. Cilione, 293 Pa. 208, 142 A. 216; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823.
01
344 U.S. 574 73 S.Ct. 460 97 L.Ed. 559 CITY OF CHICAGOv.WILLETT CO. No. 23. Argued Feb. 9, 1953. Decided Feb. 9, 1953. Mr. Arthur Magid, Chicago, Ill., for petitioner. Mr. Charles Dana Snewind, Chicago, Ill., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Once more we are called upon to pass on the validity of a tax which falls in some measure upon commerce 'among the several States.' In the situation before us, it is not a tax imposed on interstate commerce as such. It is a tax intended to fall on business done 'within the city' that levies it, although in part it is imposed on carriers of intrastate and interstate commerce inseparably commingled. The tax is on trucks and is levied by an ordinance of the City of Chicago, of which the relevant portions are set out in the margin.1 It is graduated according to size, ranging from $8.25 on a truck of no more than two-ton capacity to $16.50 on a truck of more than four-ton capacity. Penaltieis are provided for failure to pay the tax. 2 Respondent is an Illinois corporation and has its place of business in Chicago. It owns a fleet of trucks which it employs to transport goods within Chicago, between Chicago and other points in Illinois, and between Chicago, and other points in Illinois, and points in Indiana and Wisconsin. It is stipulated that each of respondent's vehicles 'during every single day of the year carries on it along with property which never leaves the city * * * property destined for some point outside the State of Illinois.' 3 Upon respondent's failure to pay the tax the present proceedings were instituted by the City of Chicago in its Municipal Court. The verdict having gone against the City, the Supreme Court of Illinois, on appeal, affirmed the judgment of acquittal, holding that respondent was 'not subject to the license tax' because it 'cannot separate its loads, nor can it discontinue any part of the service.' The City of Chicago v. Willett Co., 406 Ill. 286, 295, 94 N.E.2d 195, 200. 4 Being left in doubt by the Illinois court's opinion whether it had held that the ordinance could not, because of the Commerce Clause, be validly applied to the respondent's situation or had construed the ordinance so as not to cover a situation like respondent's, we granted certiorari and remanded for clarification. 341 U.S. 913, 71 S.Ct. 734, 95 L.Ed. 1349. A restatement of its holding left us in no doubt that the Supreme Court of Illinois did not rest its affirmance on a restrictive construction of the ordinance, excluding respondent from its scope, but found that as applied to respondent the ordinance runs afoul of the Commerce Clause. City of Chicago v. Willett Co., 409 Ill. 480, 101 N.E.2d 205. We granted certiorari to review this judgment because it raises questions of importance to the Nation's major transportation centers. 343 U.S. 940, 72 S.Ct. 1033, 96 L.Ed. 1346. 5 'It being once admitted, as of course it must be, that not every law that affects commerce among the states is a regulation of it in a constitutional sense, nice distinctions are to be expected.' Galveston, Harrisburg & San Antonio R. Co. v. State of Texas, 210 U.S. 217, 225, 28 S.Ct 638, 639, 52 L.Ed. 1031. This case does not raise the difficulties so often encountered when determination of the validity of State action affecting interstate commerce requires an accommodation between a State's undoubted power over its own internal commerce and the national interest in the unrestricted flow of interstate commerce. This tax, as it falls on respondent, an Illinois corporation having its place of business in Chicago, is clearly unassailable under the authority of People ex rel. New York Central & H.R.R. Co. v. Miller, 202 U.S. 584, 26 S.Ct. 714, 50 L.Ed. 1155, which we reaffirmed in Northwest Airlines, Inc. v. State of Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283. However, 'nice distinctions' have been argued to us and they should be considered. 6 It is said on the one hand that Osborne v. State of Florida, 164 U.S. 650, 17 S.Ct. 214, 41 L.Ed. 586; Pullman Co. v. Adams, 189 U.S. 420, 23 S.Ct. 494, 47 L.Ed. 877, and Pacific Telephone & Telegraph Co. v. Tax Commission, 297 U.S. 403, 56 S.Ct. 522, 80 L.Ed. 760, decide this case, and on the other that it is controlled by cases such as Adams Express Co. v. State of New York, 232 U.S. 14, 34 S.Ct. 203, 58 L.Ed. 483; Bowman v. Continental Oil Co., 256 U.S. 642, 41 S.Ct. 606, 65 L.Ed. 1139; Sprout v. City of South Bend, 277 U.S. 163, 48 S.Ct. 502, 72 L.Ed. 833, and Cooney v. Mountain States Telephone Co., 294 U.S. 384, 55 S.Ct. 477, 79 L.Ed. 934. As was true in Pacific Telephone Co. v. Tax Commission, supra, the taxpayer's principal argument in this case has been that the tax is necessarily void because the taxpayer is not free to withdraw from the local business, which alone the statute purports to tax, without discontinuing its interstate business as well. Respondent relies heavily on Sprout v. City of South Bend, supra. But Mr. Justice Brandeis, who wrote for the Court in Sprout, pointed out in the Pacific Telephone case that in Sprout the taxpayer could not avoid the tax by restricting himself to interstate business only and withdrawing from local business, because the tax, by its terms, fell on exclusively interstate, as well as intrastate, business conducted from the City of South Bend. 297 U.S. at pages 416—417, 56 S.Ct. at page 526, 80 L.Ed. 760. That was the controlling fact in Sprout, which was absent in the Pacific Telephone case, and is absent in this case also, since the Illinois Supreme Court has told us that the Chicago ordinance is not to be read as imposing a tax on trucks which do not carry goods within the City. City of Chicago v. Willett Co., supra, 406 Ill. at pages 289—290, 94 N.E.2d 195. Thus, as regards the main point pressed by respondent, the Chicago tax avoids the infirmity laid bare by the Sprout case, and meets the facts of Osborne v. State of Florida, supra, and Pullman Co. v. Adams, supra, as did the Pacific Telephone case. Again, as in Pacific Telephone, the taxpayer here makes no showing that the tax, though directed at intrastate business only, in fact burdens interstate commerce. This is for the taxpayer to show affirmatively and respondent has made no attempt to do so. 7 But, if it were necessary to decide upon the basis of the 'nice distinctions' urged upon us, we could not rest without more on the authority of Pacific Telephone. For the tax in that case was measured by a percentage of the gross income drawn solely from intrastate business. Although the taxpayer's intrastate and interstate activities were inseparable, the tax was not laid inseparably on both. 297 U.S. at page 414, 56 S.Ct. at page 525, 80 L.Ed. 760. That is not true in this case. Here the tax falls inseparably on what have been called instrumentalities of interstate commerce, which are at once also those of intrastate commerce. Whatever intrinsic significance this difference may have in other situations, it becomes irrelevant in a case controlled, as is this one, by the governing principles of People ex rel. New York Central & H.R.R. Co. v. Miller, supra.2 8 In the Miller case, the taxpayer, a railroad company, was 'a New York corporation, owning or hiring lines without as well as within the state * * * and sending its cars to points without as well as within the state, and over other lines as well as its own.' 202 U.S. at page 593, 26 S.Ct. at page 715, 50 L.Ed. 1155. The cars were often not in the company's possession for some time. The State of New York levied a tax computed on the basis of the amount of the capital stock employed within the State. The Court held that the railroad's property could constitutionally be subjected to this tax by New York, as that State was its permanent situs, 'notwithstanding its occasional excursions to foreign parts.' 202 U.S. at page 597, 26 S.Ct. at page 717; see Northwest Airlines v. State of Minnesota, supra, 322 U.S. at page 299, note 4, 64 S.Ct. at page 954, 88 L.Ed. 1283. In the Northwest Airlines case, the taxpayer, a Minnesota corporation, used St. Paul as the home port for all its planes. The rebuilding and overhauling of planes was done in St. Paul. Minnesota assessed a tax against the airline on the basis of the entire fleet coming into the State. We held, on the authority of the Miller case, that '(t) he benefits given to Northwest by Minnesota and for which Minnesota taxes—its corporate facilities and the governmental resources which Northwest enjoys in the conduct of its business in Minnesota—are concretely symbolized by the fact that Northwest's principal place of business is in St. Paul * * *. The relation between Northwest and Minnesota—a relation existing between no other State and Northwest—and the benefits which this relation affords are the constitutional foundation for the taxing power which Minnesota has asserted.' 322 U.S. 294, 64 S.Ct. 951, 88 L.Ed. 1283. And the two concurring opinions in the Northwest Airlines case harmonize with the result we reach here. Indeed, the 'home port' theory favored by Mr. Justice Jackson, 322 U.S. at page 306, 64 S.Ct. at page 957, fits a fleet of trucks at least as well as it does a fleet of airliners. 9 The central and decisive fact in this case is that respondent's business has, as much as any transportation business can have, a home. That home is Chicago. To the extent that respondent's business is not confined within the City's limits, it revolves around the City. It is fed by terminals for rail and sea transportation which the City provides. It receives, much more continuously than did the airline in the Northwest Airlines case or the railroad in the Miller case, the City's protection, and it benefits from the City's public services. In the circumstances, a tax of reasonable proportions such as the one in question not shown in fact to be a burden on interstate commerce, is not inconsistent with the Commerce Clause. 10 The judgment of the Supreme Court of Illinois is reversed and the cause remanded to that Court for proceedings not inconsistent with this opinion. 11 It is so ordered. 12 Reversed and remanded with directions. 13 Mr. Justice REED, with whom THE CHIEF JUSTICE joins, concurring in the judgment. 14 I agree with the conclusion reached by the Court. In Pacific Telephone & Telegraph Co. v. Tax Commission, 297 U.S. 403, 56 S.Ct. 522, 80 L.Ed. 760, it was held that '(no) decision of this Court lends support to the proposition that an occupation tax upon local business, otherwise valid, must be held void merely because the local and interstate branches are for some reason inseparable.' 297 U.S. at page 415, 56 S.Ct. at page 526. Cf. Sprout v. City of South Bend, 277 U.S. 163, 171, 48 S.Ct. 502, 504, 72 L.Ed. 833; Pullman Co. v. Adams, 189 U.S. 420, 23 S.Ct. 494, 47 L.Ed. 877. 15 The Chicago 'carters tax' is strictly an occupational tax for carrying goods within the city. City of Chicago v. Willett Co., 406 Ill. 286, 290, 94 N.E.2d 195. I do not think that New York Central & H.R.R. Co. v. Miller, 202 U.S. 584, 26 S.Ct. 714, 50 L.Ed. 1155, is a precedent to uphold such a tax as this on the ground that the taxpayer is a corporation of the taxing state and doing business in Chicago. The tax in the Miller case was measured by the capital employed in the state. All railroad cars of the taxpayer except those outside the state 'during the whole tax year' were included in the measure. 202 U.S. at page 595, 26 S.Ct. at page 716. The validity to so tax turned on the railroad's failure to show, by some form of apportionment, taxability in other states. 202 U.S. at page 597, 26 S.Ct. at page 717. I find nothing in the conclusion and judgment of the Court in Northwest Airlines v. State of Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283, that would make the Miller case applicable to this situation, even if the 'conclusion' were an opinion of this Court. If I understand the Court's present opinion correctly, it decides that this occupation tax is valid merely because the taxpayer is an Illinois corporation with its business home in Chicago, the taxing body. The facts that it is an Illinois corporation and that its trucks are sometimes out of the state are not controlling. The corporation is taxable because it does intrastate business on the streets of Chicago. 16 Whether the tax is expressly declared to be for the use of the highways or for other state services or protection rendered interstate business is immaterial. This is a charge obviously for the use of the highways of the City by the carters and therefore valid. See Union Brokerage Co. v. Jensen, 322 U.S. 202, 211—212, 64 S.Ct. 967, 973, 88 L.Ed. 1227; Southern Natural Gas Corp. v. State of Alabama, 301 U.S. 148, 153, 57 S.Ct. 696, 698, 81 L.Ed. 970; and Caskey Baking Co. v. Commonwealth of Virginia, 313 U.S. 117, 119, 61 S.Ct. 881, 882, 85 L.Ed. 1223. 17 Mr. Justice DOUGLAS, dissenting. 18 If a carrier had two trucks, one engaged exclusively in intrastate commerce and the other engaged exclusively in interstate commerce, I think this tax could not constitutionally be levied on the latter. Like the tax in Sprout v. City of South Bend, 277 U.S. 163, 170, 48 S.Ct. 502, 504, 72 L.Ed. 833, it is not designed 'as a measure of the cost or value of the use of the highways.' As the Supreme Court of Illinois said, it is an occupational tax. 406 Ill. 286, 290, 94 N.E.2d 195. It therefore could not be exacted for the privilege of engaging in interstate commerce. Sprout v. City of South Bend, supra, 277 U.S. at page 171, 48 S.Ct. at page 504, 72 L.Ed. 833; Spector Motor Service v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573. 19 The incidence of the tax in the present case is no different. It is a flat fee per truck. Respondent does not segregate its intrastate from its interstate business; nor is it possible for it to do so; nor could respondent continue in business if there were a segregation. 406 Ill. 286, 291—293, 94 N.E.2d 195. One truck often makes both intrastate and interstate deliveries. The interstate business, by increasing the number of trucks operated by respondent, therefore increases the amount of the tax. That for me is enough to establish an unconstitutional burden on interstate commerce. This case therefore is not controlled by Pacific Telephone & Telegraph Co. v. Tax Comm., 297 U.S. 403, 414, 56 S.Ct. 522, 525, 80 L.Ed. 760, where the interstate business did not increase the amount of the tax. 20 The burden on commerce is as great whether the tax on the interstate carrier is imposed by the state of its incorporation or by another state. That is implicit in Sprout v. South Bend, supra, a case which it seems to me is faithful to the constitutional scheme. 1 'Every * * * truck * * * which shall be operated * * * for the purpose of transporting * * * goods * * * within the city for hire or reward, shall be deemed a cart * * *. 'Any person engaged in the business of operating a cart shall be deemed a carter. 'An annual license tax is imposed upon every carter for each cart operated or controlled by him, according to the following schedule: "Automotive vehicles— Capacity not exceeding two tons. $8.25 Capacity exceeding two but not exceeding three tons $11.00 Capacity exceeding three but not exceeding four tons $13.20 Capacity exceeding four tons. $16.50 'It shall be unlawful for any person to engage in the business of a carter without first having paid such license tax. 'Any person volating any of the provisions of this chapter shall be fined * * *.' Municipal Code of Chicago, ch. 163, Journal of the Proceedings of the City Council of the City of Chicago, Illinois, January 14, 1949, p. 3679. 2 The Miller case was not considered by the Court in Adams Express Co. v. State of New York, supra; Bowman v. Continental Oil Co., supra; Cooney v. Mountain States Telephone Co., supra; or Sprout v. South Bend, supra. It was inapplicable to the facts of the first three cases. In Adams Express, circumstances surrounding the imposition and enforcement of the tax indicated an attempt to exert control over interstate commerce for reasons and purposes not sanctioned by the Commerce Clause. In the Bowman case the taxpayer was a foreign corporation. In Cooney this fact is recited by the Court. In Sprout, however, the taxpayer was a resident, and it would appear that South Bend was his place of business. The Sprout case rests, as is true of all decisions in this field, on the precise facts surrounding the challenged tax—its scope, its relation to the taxing scheme of State or City, its amount, its practical consequences, and other relevant factors.
78
344 U.S. 590 73 S.Ct. 472 97 L.Ed. 576 KWONG HAI CHEWv.COLDING et al. THE SIR JOHN FRANKLIN. No. 17. Argued Oct. 17, 1952. Decided Feb. 9, 1953. Mr. Carl S. Stern, New York City, for petitioner. Mr. John F. Davis, Washington, D.C., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 A preliminary consideration that is helpful to the solution of this litigation is whether, under 8 CFR § 175.57(b),1 the Attorney General has authority to deny to a lawful permanent resident of the United States, who is an alien continuously residing and physically present therein, the opportunity to be heard in opposition to an order for his 'permanent exclusion' and consequent deportation, provided the Attorney General determines that the order is based on information of a confidential nature, the disclosure of which would be prejudicial to the public interest. Assuming, as seems to be clear, that the Attorney General does not have such authority, the critical issue then presented is whether he has that authority under the following additional circumstances: the resident alien is a seaman, he currently maintains his residence in the United States and usually is physically present there, however, he is returning from a voyage as a seaman on a vessel of American registry with its home port in the United States, that voyage has included scheduled calls at foreign ports in the Far East, and he is detained on board by order of the Attorney General. For the reasons hereafter stated, we hold that these additional circumstances do not change the result and that the Attorney General does not have the authority suggested. 2 Petitioner, Kwong Hai Chew, is a Chinese seaman last admitted to the United States in 1945. Thereafter, he married a native American and bought the home in which they reside in New York. Having proved his good moral character for the preceding five years, petitioner secured suspension of his deportation. In 1949, he was admitted to permanent residence in the United States as of January 10, 1945.2 In World War II, he served with credit in the United States Merchant Marine. He never has had any difficulty with governmental authorities. In April, 1950, he filed a petition for naturalization which is still pending. In November, 1950, he was screened and passed by the Coast Guard for employment as a seaman on a merchant vessel.3 In the same month he signed articles of employment as chief steward on the S.S. Sir John Franklin, a vessel of American registry with its home port in New York City. The voyage was to include calls at several foreign ports in the Far East. He remained aboard the vessel on this voyage but, at San Francisco, in March, 1951, the immigration inspector ordered him 'temporarily excluded,' under 8 CFR § 175.57, as an alien whose entry was deemed prejudicial to the public interest. 3 On the vessel's arrival in New York, March 29, petitioner's 'temporary exclusion' was continued and he was not permitted to land. March 30, he sought a writ of habeas corpus from the United States District Court for the Eastern District of New York, charging that his detention was arbitrary and capricious and a denial of due process of law in violation of the Fifth Amendment to the Constitution of the United States. Purporting to act under 8 CFR § 175.57(b), the Attorney General directed that petitioner be denied a hearing before a Board of Special Inquiry and that his 'temporary exclusion be made permanent.' The Attorney General continues to deny petitioner all information as to the nature and cause of any accusations against him and all opportunity to be heard in opposition to the order for his 'exclusion.' He is detained at Ellis Island 'for safe-keeping on behalf of the master of the S.S. 'Sir John Franklin." 4 The writ was issued but, after a hearing, it was dismissed by the District Court. 97 F.Supp. 592. The Court of Appeals for the Second Circuit affirmed. 192 F.2d 1009. Both courts relied upon U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317. We granted certiorari because of the doubtful applicability of that decision and the importance of the issue in the administration of the Nation's immigration and naturalization program. 343 U.S. 933, 72 S.Ct. 769. Bail was denied by the District Court. 98 F.Supp. 717. It also was denied by the Court of Appeals, without prejudice to an application to this Court. Applications for bail are pending before the Commissioner of Immigration and Naturalization and this Court. 5 The issue is petitioner's detention, without notice of any charge against him and without opportunity to be heard in opposition thereto. Petitioner contends that such detention is not authorized by 8 CFR § 175.57(b). He contends also that, if that regulation does purport to authorize such detention, the regulation is invalid as an attempt to deprive him of his liberty without due process of law in violation of the Fifth Amendment. Agreement with petitioners first contention makes it unnecessary to reach his recond. 6 The case of Knauff v. Shaughnessy, supra, relied upon below, is not in point. It relates to the rights of an alien entrant and does not deal with the question of a resident alien's right to be heard. For purposes of his constitutional right to due process, we assimilate petitioner's status to that of an alien continuously residing and physically present in the United States.4 To simplify the issue, we consider first what would have been his constitutional right to a hearing had he not undertaken his voyage to foreign ports but had remained continuously within the territorial boundaries of the United States. 7 1. It is well established that if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law.5 Although it later may be established, as respondents contend, that petitioner can be expelled and deported, yet before his expulsion, he is entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal.6 Although Congress may prescribe conditions for his expulsion and deportation, not even Congress may expel him without allowing him a fair opportunity to be heard.7 For example, he is entitled to a fair chance to prove mistaken identity. At the present stage of the instant case, the issue is not one of exclusion, expulsion or deportation. It is one of legislative construction and of proedural due process.8 8 This being recognized, we interpret this regulation as making no attempt to question a resident alien's constitutional right to due process. Section 175.57(b) uses the term 'excludable' in designating the aliens to which it applies. That term relates naturally to entrant aliens and to those assimilated to their status. The regulation nowhere refers to the expulsion of aliens, which is the term that would apply naturally to aliens who are lawful permanent residents physically present within the United States. Accordingly, we find no language in the regulation that would have required its application to petitioner had he remained continuously and physically within the United States.9 It thus seems clear that the Attorney General would not have had the authority to deny to petitioner a hearing in opposition to such an order as was here made, provided petitioner had remained within the United States. 9 The regulation before us was issued by the Secretary of State and concurred in by the Attorney General, pursuant to Presidential Proclamations No. 2523, U.S.Code Cong.Serv.1941, p. 883, 3 CFR, 1943 Cum.Supp., 270, and No. 2850, U.S.Code Cong. Serv. 1949, p. 2618, 3 CFR, 1949 Supp. 41. The latter proclamation issued August 17, 1949 also 'ratified and confirmed' the regulation. Those proclamations, in turn, depend upon § 1 of the Act of May 22, 1918, 40 Stat. 559, as amended, June 21, 1941, 55 Stat. 252, 22 U.S.C. § 223, 22 U.S.C.A. § 223. It is not questioned that the regulation, as above interpreted, comes within these authorizations, or that such authorizations have been extended to include the dates material in this case. 66 Stat. 163, 8 U.S.C.A. § 1101 et seq., 66 Stat. 333. We find nothing in the statute or the proclamations which calls for, permits or sustains a broader interpretation of 8 CFR § 175.57(b) than we have given to it. The wording also now reflects congressional intent because substantially the same language was inserted by Congress in the Subversive Activities Control Act of 1950, 64 Stat. 1008. See note 1, supra. 10 2. Petitioner's final contention is that if an alien is a lawful permanent resident of the United States and also is a seaman who has gone outside of the United States on a vessel of American registry, with its home port in the United States, and, upon completion of such voyage, has returned on such vessel to the United States and is still on board, he is still, from a constitutional point of view, a person entitled to procedural due process under the Fifth Amendment. We do not regard the constitutional status which petitioner indisputably enjoyed prior to his voyage as terminated by that voyage. From a constitutional point of view, he is entitled to due process without regard to whether or not, for immigration purposes, he is to be treated as an entrant alien, and we do not now reach the question whether he is to be so treated. 11 Section 175.57(b)'s authorization of the denial of hearings raises no constitutional conflict if limited to 'excludable' aliens who are not within the protection of the Fifth Amendment. The assimilation of petitioner, for constitutional purposes, to the status of a continuous resident physically present in the United States also accords with the Nation's immigration and naturalization program. For example, for purposes of naturalization, such an assimilation was expressly prescribed in the Nationality Act of 1940: 'Sec. 307. (a) No person * * * shall be naturalized unless such petitioner, (1) immediately preceding the date of filing petition for naturalization has resided continuously within the United States for at least five years * * *. 12 '(d) The following shall be regarded as residence within the United States within the meaning of this chapter: 13 '(2) Continuous service by a seaman on a vessel or vessels whose home port is in the United States and which are of American registry or American owned, if rendered subsequent to the applicant's lawful entry into the United States for permanent residence and immediately preceding the date of naturalization.' 54 Stat. 1142—1143, 8 U.S.C. § 707, 8 U.S.C.A. § 707. See also, § 325, 54 Stat. 1150, as amended, 64 Stat. 1015, 8 U.S.C. (Supp. V) § 725, 8 U.S.C.A. § 725.10 14 While it may be that a resident alien's ultimate right to remain in the United States is subject to alteration by statute or authorized regulation because of a voyage undertaken by him to foreign ports, it does not follow that he is thereby deprived of his constitutional right to procedural due process. His status as a person within the meaning and protection of the Fifth Amendment cannot be capriciously taken from him. Where neither Congress, the President, the Secretary of State nor the Attorney General has inescapably said so, we are not ready to assume that any of them has attempted to deprive such a person of a fair hearing.11 15 This preservation of petitioner's right to due process does not leave an unprotected spot in the Nation's armor. Before petitioner's admission to permanent residence, he was required to satisfy the Attorney General and Congress of his suitability for that status.12 Before receiving clearance for his foreign cruise, he was screened and approved by the Coast Guard.13 Before acceptance of his petition for naturalization, as well as before final action thereon, assurance is necessary that he is not a security risk. See 8 U.S.C., c. 11, Subchapter III—Nationality Through Naturalization, §§ 701—747, as amended, 8 U.S.C.A. §§ 701 747. 16 We do not reach the issue as to what would be the constitutional status of 8 CFR § 175.57(b) if it were interpreted as denying to petitioner all opportunity for a hearing. Also, we do not reach the issue as to what will be the authority of the Attorney General to order the deportation of petitioner after giving him reasonable notice of the charges against him and allowing him a hearing sufficient to meet the requirements of procedural due process. 17 For the reasons stated, we conclude that the detention of petitioner, without notice of the charges against him and without opportunity to be heard in opposition to them, is not authorized by 8 CFR § 175.57(b). Accordingly, the judgment of the Court of Appeals is reversed and the cause remanded do the District Court. 18 Judgment reversed and cause remanded to the District Court. 19 Mr. Justice MINTON dissents. 1 '§ 175.57 Entry not permitted in special cases. * * * '(b) In the case of an alien temporarily excluded by an official of the Department of Justice on the ground that he is, or may be excludable under one of more of the categories set forth in § 175.53, no hearing by a board of special inquiry shall be held until after the case is reported to the Attorney General and such a hearing is directed by the Attorney General or his representative. In any special case the alien may be denied a hearing before a board of special inquiry and an appeal from the decision of that board if the Attorney General determines that he is excludable under one of the categories set forth in § 175.53 on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest.' The categories set forth in § 175.53 as a basis for exclusion are those defined 'to be prejudicial to the public interest.' They include, for example, membership in 'a political organization associated with or carrying out policies of any foreign government opposed to the measures adopted by the Government of the United States in the public interest * * *' or being 'engaged in organizing, teaching, advocating, or directing any rebellion, insurrection, or violent uprising against the United States.' 8 CFR. For statutory language similar to that in 8 CFR § 175.57, see § 5 of the Act of October 16, 1918, as amended by the Subversive Activities Control Act of 1950, 64 Stat. 1008, 8 U.S.C. (Supp. V) § 137—4, 8 U.S.C.A. § 137—4, referring to aliens who are 'excludable' under § 137. The Government, in the instant case, relies upon 8 CFR § 175.57, rather than upon 8 U.S.C. (Supp. V) § 137—4. 2 'Resolved by the Senate (the House of Representatives concurring), That the Congress favors the suspension of deportation in the case of each alien hereinafter named, in which case the Attorney General has suspended deportation for more than six months. 'A—6665545, Chew, Kwong Hai, or Harry Kwong (Hai Chew). 'Agreed to July 20, 1949.' 63 Stat. 1240, 1242. For the effect of the above action, see § 19(c) of the Immigration Act of February 5, 1917, as amended, 62 Stat. 1206, 8 U.S.C. (Supp. V) § 155(c), 8 U.S.C.A. § 155: '(c) In the case of any alien * * * who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may * * * suspend deportation of such alien if he is not ineligible for naturalization or if ineligible, such ineligibility is solely by reason of his race, if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien; or (b) that such alien has resided continuously in the United States for seven years or more and is residing in the United States upon the effective date of this Act. If the deportation of any alien is suspended under the provisions of this subsection for more than six months, a complete and detailed statement of the facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. * * * If during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, the Congress passes a concurrent resolution stating in substance that it favors the suspension of such deportation, the Attorney General shall cancel deportation proceedings. * * * Deportation proceedings shall not be canceled in the case of any alien who was not legally admitted for permanent residence at the time of his last entry into the United States, unless such aliens pays * * * a fee of $18 * * *. (In the instant case this was paid.) Upon the cancellation of such proceedings in any case in which fee has been paid the Commissioner shall record the alien's admission for permanent residence as of the date of his last entry into the United States * * *.' 8 CFR § 175.41(q) states that for the purposes of §§ 175.41 to 175.62 'The term 'an alien who is a lawful permanent resident of the United States' means an alien who has been lawfully admitted into the continental United States, the Virgin Islands, Puerto Rico, or Hawaii for permanent residence therein and who has since such admission maintained his domicile in the United States: * * *.' 3 For the nature and significance of such clearance, see Executive Order No. 10173, of October 18, 1950, U.S.Code Cong.Serv.1950, p. 1663, especially §§ 6.10—1 to 6.10—9, now published, as amended, in 33 CFR, 1951 Cum. Pocket Supp. That order was issued pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950, 64 Stat. 427—428, 50 U.S.C. (Supp. V) § 191, 50 U.S.C.A.Appendix, § 191. It has now been implemented by regulations effective December 27, 1950, published, as amended, in 33 CFR, 1951 Cum. Pocket Supp., §§ 121.01—125.37. See also, Parker v. Lester, D.C., 98 F.Supp. 300, Id., 9 Cir., 191 F.2d 1020. Section 6.10—1, as it existed at the date of petitioner's clearance, provided: 'Issuance of documents and employment of persons aboard vessels. No person shall be issued a document required for employment on a merchant vessel of the United States nor shall any licensed officer or certificated man be employed on a merchant vessel of the United States if the Commandant is satisfied that the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would be inimical to the security of the United States: * * *.' 15 Fed.Reg. 7007. Later regulations have published detailed security provisions as to who may be employed on merchant vessels of the United States of 100 gross tons and upward, whether engaged in foreign or other trade. 33 CFR, 1951 Cum. Pocket Supp., §§ 121.13—121.16. 4 In this opinion 'exclusion' means preventing someone from entering the United States who is actually outside of the United States or is treated as being so. 'Expulsion' means forcing someone out of the United States who is actually within the United States or is treated as being so. 'Deportation' means the moving of someone away from the United States, after his exclusion or expulsion. 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). 'The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. During his probationary residence, this Court has steadily enlarged his right against Executive deportation except upon full and fair hearing. * * * And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties—such as the due process of law of the Fourteenth Amendment.' Johnson v. Eisentrager, 339 U.S. 763, 770—771, 70 S.Ct. 936, 940, 94 L.Ed. 1255. The latter case also comments that 'in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act.' Id., 339 U.S. at page 771, 70 S.Ct. at page 940. That case related to nonresident enemy aliens who had never been in the United States, rather than to a lawful permanent resident in the position of petitioner. There is no lack of physical presence for jurisdictional purposes in the instant case. 6 '* * * But this court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in 'due process of law' as understood at the time of the adoption of the Constitution. One of these principles is that no person shall be deprived of his liberty without opportunity, at some time, to be heard, before such officers, in respect of the matters upon which that liberty depends—not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act. Therefore, it is not competent for the Secretary of the Treasury or any executive officer, at any time within the year limited by the statute, arbitrarily to cause an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here, to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized.' The Japanese Immigrant Case, Kaoru Yumataya v. Fisher, 189 U.S. 86, 100—101, 23 S.Ct. 611, 614, 47 L.Ed. 721. '* * * It was under compulsion of the Constitution that this Court long ago held that an antecedent deportation statute must provide a hearing at least for aliens who had not entered clandestinely and who had been here some time even if illegally.' Wong Yang Sung v. McGrath, 339 U.S. 33, 49—50, 70 S.Ct. 445, 454, 94 L.Ed. 616. See also Johnson v. Eisentrager, supra, 339 U.S. at pages 770—771, 70 S.Ct. at pages 939—940; Carlson v. Landon, 342 U.S. 524, 538, 72 S.Ct. 525, 533, 96 L.Ed. 547. 7 See Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905, recognizing the right to expel and deport resident aliens. 'When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality.' Wong Yang Sung v. McGrath, supra, 339 U.S. at page 50, 70 S.Ct. at page 454; Kwock Jan Fat v. White, 253 U.S. 454, 457—458, 464, 40 S.Ct. 566, 567, 570, 64 L.Ed. 1010. 8 It is to be noted that the cases generally cited in this field in relation to the exclusion, expulsion or deportability of resident aliens deal only with that ultimate issue, and not with the right of the resident alien to a hearing sufficient to satisfy procedural due process. The reports show that there were hearings and that in some cases the Court considered whether the hearings had been fair. E.g., United States ex rel. Volpe v. Smith, 289 U.S. 422, 424, 53 S.Ct. 665, 666, 77 L.Ed. 1298; United States ex rel. Stapf v. Corsi, 287 U.S. 129, 131, 53 S.Ct. 40, 41, 77 L.Ed. 215; United States ex rel. Claussen v. Day, 279 U.S. 398, 400, 49 S.Ct. 354, 73 L.Ed. 758; Quon Quon Poy v. Johnson, 273 U.S. 352, 358, 47 S.Ct. 346, 348, 71 L.Ed. 680; Lewis v. Frick, 233 U.S. 291, 293, 34 S.Ct. 488, 489, 58 L.Ed. 967; Lapina v. Williams, 232 U.S. 78, 83, 34 S.Ct. 197, 58 L.Ed. 515; Fong Yue Ting v. United States, 149 U.S. 698, 729, 13 S.Ct. 1016, 1028, 37 L.Ed. 905. 9 The preceding subsection, 175.57(a), uses the additional word 'deported' but only to supplement 'excluded': 'Any alien so temporarily excluded by an official of the Department of Justice shall not be admitted and shall be excluded and deported unless the Attorney General, after consultation with the Secretary of State, is satisfied that the admission of the alien would not be prejudicial to the interests of the United States.' 8 CFR. 10 This provision survives in a modified form in § 330 of the Immigration and Nationality Act of 1952, 66 Stat. 251, 8 U.S.C.A. § 1441. Section 330 (b) includes a savings clause affecting those who applied for naturalization before September 23, 1950. Section 405 (a) also contains a general savings clause, 66 Stat. 280, 8 U.S.C.A. § 1101 note. 11 Existing statutory and administrative provisions for 'Exclusion Without Hearing' are discussed in the Report of the President's Commission on Immigration and Naturalization entitled 'Whom We Shall Welcome' dated January 1, 1953, at pages 228—231. The discussion treats the provisions as applicable to entrant and reentrant aliens but does not even suggest that they are applicable to aliens lawfully admitted to permanent residence and physically present within the United States. The report discusses the harshness of the 'reentry doctrine' and recommends its modification at pages 199—200. It does not, however, even suggest that the reentry doctrine attempts to limit the constitutional right to a hearing which resident aliens, in the status of petitioner, may have under the Fifth Amendment. The instances of hardship which the report cites appear to have been disclosed at hearings held on the issue of the alien's right to reenter. 12 See note 2, supra. 13 See note 3, supra.
34
344 U.S. 443 73 S.Ct. 437 97 L.Ed. 469 Bennie DANIELS and Lloyd Ray Daniels, Petitioners,v.Robert A. ALLEN, Warden, Central Prison of the State of North Carolina. Raleigh SPELLER, Petitioner, v. Robert A. ALLEN, Warden, Central Prison of North Carolina, Raleigh, North Carolina. Clyde BROWN, Petitioner, v. Robert A. ALLEN, Warden, Central Prison of the State of North Carolina. UNITED STATES of America, ex rel. James SMITH, Petitioner, v. Dr. Frederick S. BALDI, Superintendent of the Philadelphia County Prison. Nos. 20, 22, 31 and 32. Decided Feb. 9, 1953. Mr. Justice FRANKFURTER. 1 The course of litigation in these cases and their relevant facts are set out in Mr. Justice REED's opinion. This opinion is restricted to the two general questions which must be considered before the Court can pass on the specific situations presented by these cases. The two general problems are these: 2 I. The legal significance of a denial of certiorari, in a case required to be presented here under the doctrine of Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, when an application for a writ of habeas corpus thereafter comes before a district court.* 3 II. The bearing that the proceedings in the State courts should have on the disposition of such an application in a district court. * Mr. Justice Frankfurter's opinion on this issue expresses the position of the majority, see 344 U.S. 450—453, 73 S.Ct. pp. 404, 405 (Syllabus paragraphs 3—8).
01
344 U.S. 583 73 S.Ct. 468 97 L.Ed. 567 BODE et al.v.BARRETT, Secretary of State of Illinois et al. CO-ORDINATED TRANSPORT, Inc., OF ILLINOIS et al. v. BARRETT, Secretary of State of Illinois et al. Nos. 187, 274. No. 187 Submitted Jan. 5, 1953. No. 274 Argued Jan. 5, 1953. Decided Feb. 9, 1953. Rehearing Denied April 6, 1953. See 345 U.S. 931, 73 S.Ct. 778. Mr. Scott W. Lucas, Springfield, Ill., Mr. Charles A. Thomas, Rockford, Ill., Mr. Hugh J. Graham, Jr., Springfield, Ill., for appellants Bode and others. Mr. Frank R. Reid, Jr., Aurora, Ill., for appellants Co-Ordinated Transport and others. Messrs. John T. Chadwell and Richard M. Keck, Chicago, Ill., for Barrett and others. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 These cases challenge the constitutionality of §§ 9, 11a, and 20 of the Illinois Motor Vehicle Law, as amended. Ill.Rev.Stat.1951, c. 95 1/2. The statute imposes a tax for the use of the public highways and measures the tax exclusively by gross weight of the vehicle. Appellants, most of whom are interstate carriers, challenged the tax as violating the Commerce Clause, art. I, § 8, of the Constitution and the Due Process Clause of the Fourteenth Amendment. The Supreme Court of Illinois sustained the statute. 412 Ill. 204, 321, 106 N.E.2d 521, 510. The cases are here by appeal. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). 2 The main emphasis of the argument is on the Commerce Clause. The argument starts from the premise found in our opinions that a state may levy a tax on an interstate motor vehicle that is 'measured by or has some fair relationship to the use of the highways for which the charge is made.' McCarroll v. Dixie Greyhound Lines, 309 U.S. 176, 181, 60 S.Ct. 504, 506, 84 L.Ed. 683. It is contended that the present tax is not so measured but has the same infirmities as the tax on motor vehicles which the Court invalidated in Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953. An elaborate argument is advanced to the effect that a large fraction of the costs of installing and maintaining highways has no relation to the weight of the vehicles that pass over them. Therefore, a tax such as this one, which is determined solely with reference to weight, is a tax part of which is exacted for a purpose other than the use of the highways. 3 We do not stop to analyze the evidence tendered by appellants. For we do not reach the issue in this case. It is true that some of the appellants are interstate carriers. But it is also true that each of the interstate carriers does an intrastate business as well. The tax is required from any motor vehicle that moves on the highways. It is, indeed, a tax for the privilege of using the highways of Illinois. Clearly it is within the police power of Illinois to exact such a tax at least from intrastate operators. Hendrick v. State of Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385. No showing has been made by any of the appellants that the tax bears no reasonable relation to the use he makes of the highways in his intrastate operations. No effort is made to show that in that way or in some other manner the tax is increased by reason of the interstate operations of any appellant. In short appellants have failed to carry the burden of showing that the tax deprives them of rights which the Commerce Clause protects. Cf. Southern R. Co. v. King, 217 U.S. 524, 534, 30 S.Ct. 594, 596, 54 L.Ed. 868. The case is therefore to be distinguished from those situations where by nature of the tax or its incidence, Sprout v. City of South Bend, 277 U.S. 163, 170, 171, 48 S.Ct. 502, 504, 72 L.Ed. 833; Spector Motor Service v. O'Connor, 340 U.S. 602, 609, 71 S.Ct. 508, 512, 95 L.Ed. 573, an issue of unreasonable burden on interstate commerce is presented. 4 The objections under the Due Process Clause of the Fourteenth Amendment are without substance. The power of a state to tax, basic to its sovereignty, is limited only if in substance and effect it is the exertion of a different and a forbidden power, Magnano Co. v. Hamilton, 292 U.S. 40, 44, 54 S.Ct. 599, 601, 78 L.Ed. 1109, as for example the taxation of a privilege protected by the First Amendment. See Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 891, 87 L.Ed. 1292. No such problem is even remotely involved here. Complaint is made that private carriers are taxed at the same rate as carriers for hire. Yet so far as the Fourteenth Amendment is concerned, that objection is frivolous, since neither private nor public carriers have the right to use the highways without payment of a fee, see Hendrick v. State of Maryland, supra; and we cannot say that the exaction of the same fee from each is out of bounds. Appellants make other arguments to the effect that the statute is so inconsistent, vague, and uncertain in its classification as to violate the Equal Protection Clause of the Fourteenth Amendment. But even if we assume that the vagaries of the law reach that dignity, no showing is made that any of the appellants is the victim of an invidious classification. Cf. Stephenson v. Binford, 287 U.S. 251, 277, 53 S.Ct. 181, 189, 77 L.Ed. 288. 5 We need notice only one other argument and that is that the statute requires Illinois residents to pay the tax, whereas nonresidents are exempted provided the states of their residence reciprocate and grant like exemptions to Illinois residents. That objection, so far as the Fourteenth Amendment is concerned, was adequately answered in Storaasli v. State of Minnesota, 283 U.S. 57, 62, 51 S.Ct. 354, 355, 75 L.Ed. 839. And contrary to appellants' suggestions, that kind of reciprocal arrangement between states has never been thought to violate the Compact Clause of art. I, § 10 of the Constitution. See St. Louis & S.F.R. Co. v. James, 161 U.S. 545, 562, 16 S.Ct. 621, 627, 40 L.Ed. 802; Kane v. State of New Jersey, 242 U.S. 160, 168, 37 S.Ct. 30, 32, 61 L.Ed. 222. 6 Affirmed. 7 Mr. Justice BURTON concurs in the result. 8 Mr. Justice CLARK took no part in the consideration or decision of these cases. 9 Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON joins, dissenting. 10 The problem of this case is not met by asserting that a tax ranging as high as $1,580 per truck does not present an issue under the Commerce Clause because the carriers do intrastate as well as interstate business and the tax, therefore, does not as a matter of law affect commerce among the States. (The Court apparently deems the size of the tax immaterial since it does not mention the amounts involved.) It has been suggested in a cognate situation, though one involving a comparatively trifling exaction, that interstate commerce is unconstitutionally burdened solely because the taxpayer's interstate business increases the number of trucks on which the tax is levied and hence the total amount due from him. One does not have to embrace this suggestion to find the Court's position in this case unsupportable. For the Court declares appellants' claim under the Commerce Clause baseless although it does not 'stop to analyze the evidence tendered by appellants.' 11 The Court disposes of the contention that the judgments below offend the Commerce Clause by concluding that it need not 'reach the issue in this case.' Its reasoning is as follows: all the interstate carriers here are engaged in intrastate commerce as well; were they not engaged in interstate commerce at all, they could be taxed on account of their intrastate operations; since none of the appellants thus pays an additional tax for its interstate operations, none is in a position to claim the protection of the Commerce Clause. Consideration of a challenge to a tax under the Due Process Clause, which the Court does undertake (reaching conclusions I agree with), does not, of course, bar appellants from challenging the tax under the Commerce Clause. Hence the Court's refusal, on the ground that 'it does not reach the issue,' 'to analyze the evidence' on which the Commerce Clause contention rests can only mean that the Court finds that appellants had no standing to sue under the Commerce Clause, albeit the formal phrase is withheld. 12 For this truly startling conclusion we are vouchsafed no authority except: 'Cf. Southern R. Co. v. King, 217 U.S. 524, 534, 30 S.Ct. 594, 596, 54 L.Ed. 868.' On its facts the King case has nothing whatever to do with the problem before us. The passage to which the citation refers simply repeats the self-evident proposition that only one whose alleged constitutional rights are affected by a State statute can assail it. But whether appellants are so affected is the very question at the threshold of the constitutional issue: is the tax forbidden by the Commerce Clause. Being engaged in interstate commerce, appellants invoke the Commerce Clause against an Illinois statute which affects them because it taxes them. Whether or not the effect on them is unconstitutional is the question which, in compliance with settled procedural rules, they have brought here on appeal. 13 If it is indeed true, as the Court holds, that one who is engaged both in intrastate and interstate commerce has no standing to challenge a tax such as this under the Commerce Clause because the State might, perchance, extract the same dollars and cents from him even if he engaged in intrastate commerce alone, then this Court has long been entertaining, ignorantly and wastefully, cases which it had no power to hear. 14 The taxation and licensing by the States of commingled, though not necessarily inextricably commingled, intrastate and interstate business, or of the instrumentalities of such commingled business, have again and again been considered here to determine whether such an assertion of the taxing power by the States had, in its practical incidence, cast an inadmissible burden upon the interstate aspect of the joint enterprise. Can it be that all these cases could quickly and easily have been disposed of by suggesting that the taxpayer could in any event have been taxed on his intrastate operations? As far back as 1888, in Leloup v. Port of Mobile, 127 U.S. 640, 8 S.Ct. 1380, 32 L.Ed. 311, the Court struck down because of the Commerce Clause a tax attacked by a taxpayer doing both intrastate and interstate business. In a hundred-odd cases since, a claim under the Commerce Clause in similar situations was considered. (This does not mean it always prevailed.) Can it be that all our predecessors bothered their heads needlessly? Indeed, ever since Western Union Tel. Co. v. State of Kansas, 216 U.S. 1, 30 S.Ct. 190, 54 L.Ed. 355, and Pullman Co. v. State of Kansas, 216 U.S. 56, 30 S.Ct. 232, 54 L.Ed. 378, it has been settled that a State may not exclude a foreign corporation from doing merely local business if such exclusion would 'unreasonably burden' the nonexcludable interstate business. (I am not now concerned with what is and what is not such an 'unreasonable burden.') Under today's holding, was there standing in these cases? 15 A word on the merits. Of course a State may tax for the use of its roads by carriers engaged in interstate commerce, whether they carry local goods as well or do an exclusive interstate business. But this states the beginning of a problem in constitutional law; it does not give the answer. The real question is how the State makes the exaction—that is, what is the nature of the exaction, its basis and its practical operation. As the Court does not reach this question, it would serve no purpose for me to do so.
78
345 U.S. 22 73 S.Ct. 510 97 L.Ed. 754 UNITED STATEv.KAHRIGER. No. 167. Argued Dec. 16, 17, 1952. Decided March 9, 1953. Rehearing Denied April 6, 1953. See 345 U.S. 931, 73 S.Ct. 778. Mr. Robert L. Stern, Washington, D.C., for appellant. Mr. Jacob Kossman, Philadelphia, Pa., for appellee. Mr. Justice REED delivered the opinion of the Court. 1 The issue raised by this appeal is the constitutionality of the occupational tax provisions of the Revenue Act of 1951,1 which levy a tax on persons engaged in the business of accepting wagers, and require such persons to register with the Collector of Internal Revenue. The unconstitutionality of the tax is asserted on two grounds. First, it is said that Congress, under the pretense of exercising its power to tax has attempted to penalize illegal intrastate gambling through the regulatory features of the Act, 26 U.S.C. (Supp. V) § 3291, 26 U.S.C.A. § 3291, and has thus infringed the police power which is reserved to the states. Secondly, it is urged that the registration provisions of the tax violate the privilege against self-incrimination and are arbitrary and vague, contrary to the guarantees of the Fifth Amendment. 2 The case comes here on appeal, in accordance with 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, from the United States District Court for the Eastern District of Pennsylvania, where an information was field against appellee alleging that he was in the business of accepting wagers and that he willfully failed to register for and pay the occupational tax in question. Appellee moved to dismiss on the ground that the sections upon which the information was based were unconstitutional. The District Court sustained the motion on the authority of our opinion in United States v. Constantine, 296 U.S. 287, 56 S.Ct. 223, 80 L.Ed. 233. The court reasoned that while 'the subject matter of this legislation so far as revenue purposes is concerned is within the scope of Federal authorities', the tax was unconstitutional in that the information called for by the registration provisions was 'peculiarly applicable to the applicant from the standpoint of law enforcement and vice control', and therefore the whole of the legislation was an infringement by the Federal Government on the police power reserved to the states by the Tenth Amendment. United States v. Kahriger, D.C., 105 F.Supp. 322, 323. 3 The result below is at odds with the position of the seven other district courts which have considered the matter,2 and, in our opinion, is erroneous. 4 In the term following the Constantine opinion, this Court pointed out in Sonzinsky v. United States, 300 U.S. 506, at page 513, 57 S.Ct. 554, at page 555, 81 L.Ed. 772 (a case involving a tax on a 'limited class' of objectionable firearms alleged to be prohibitory in effect and 'to disclose unmistakably the legislative purpose to regulate rather than to tax'), that the subject of the tax in Constantine was 'described or treated as criminal by the taxing statute.' The tax in the Constantine case was a special additional excise tax of $1,000, placed only on persons who carried on a liquor business in violation of state law. The wagering tax with which we are here concerned applies to all persons engaged in the business of receiving wagers regardless of whether such activity violates state law. 5 The substance of respondent's position with respect to the Tenth Amendment is that Congress has chosen to tax a specified business which is not within its power to regulate. The precedents are many upholding taxes similar to this wagering tax as a proper exercise of the federal taxing power. In the License Tax Cases, 5 Wall. 462, 18 L.Ed. 497, the controversy arose out of indictments for selling lottery tickets and retailing liquor in various states without having first obtained and paid for a license under the Internal Revenue Act of Congress. The objecting taxpayers urged that Congress could not constitutionally tax or regulate activities carried on within a state. 5 Wall. at page 470. The Court pointed out that Congress had 'no power of regulation nor any direct control' 5 Wall., at pages 471, 472, over the business there involved. The Court said that if the licenses were to be regarded as by themselves giving authority to carry on the licensed business it might be impossible to reconcile the granting of them with the Constitution. 5 Wall at page 471. 6 'But it is not necessary to regard these laws as giving such authority. So far as they relate to trade within State limits, they give none, and can give none. They simply express the purpose of the government not to interfere by penal proceedings with the trade nominally licensed, if the required taxes are paid. The power to tax is not questioned, nor the power to impose penalties for non-payment of taxes. The granting of a license, therefore, must be regarded as nothing more than a mere form of imposing a tax, and of implying nothing except that the licensee shall be subject to no penalties under national law, if he pays it.' 5 Wall. at page 471. 7 Appellee would have us say that because there is legislative history3 indicating a congressional motive to suppress wagering, this tax is not a proper exercise of such taxing power. In the License Cases, supra, it was admitted that the federal license 'discouraged' the activities. The intent to curtail and hinder, as well as tax, was also manifest in the following cases, and in each of them the tax was upheld: Veazie Bank v. Fenno, 8 Wall. 533, 19 L.Ed. 482 (tax on paper money issued by state banks); McCray v. United States, 195 U.S. 27, 59, 24 S.Ct. 769, 777, 49 L.Ed. 78 (tax on colored oleomargarine; United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 and Nigro v. United States, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600 (tax on narcotics); Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (tax on firearms); United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47 (tax on marihuana). 8 It is conceded that a federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed. Nor is the tax invalid because the revenue obtained its negligible. Appellee, however, argues that the sole purpose of the statute is to penalize only illegal gambling in the states through the guise of a tax measure. As with the above excise taxes which we have held to be valid, the instant tax has a regulatory effect. But regardless of its regulatory effect, the wagering tax produces revenue. As such it surpasses both the narcotics and firearms taxes which we have found valid.4 9 It is axiomatic that the power of Congress to tax is extensive and sometimes falls with crushing effect on businesses deemed unessential or inimical to the public welfare, or where, as in dealings with narcotics, the collection of the tax also is difficult. As is well known, the constitutional restraints on taxing are few. 'Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment and indirect taxes by the rule of uniformity.' License Tax Cases, supra, 5 Wall. 471.5 The remedy for excessive taxation is in the hands of Congress, not the courts. Veazie Bank v. Fenno, 8 Wall. 533, 548, 19 L.Ed. 482. Speaking of the creation of the Bank of the United States, as an instrument for carrying out federal fiscal policies, this Court said in McCulloch v. Maryland, 4 Wheat, 316, 423, 4 L.Ed. 579. 10 'Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.' 11 The difficulty of saying when the power to lay uniform taxes is curtailed, because its use brings a result beyond the direct legislative power of Congress, has given rise to diverse decisions. In that area of abstract ideas, a final definition of the line between state and federal power has baffled judges and legislators. 12 While the Court has never questioned the above-quoted statement of Mr. Chief Justice Marshall in the McCulloch case, the application of the rule has brought varying holdings on constitutionality. Where federal legislation has rested on other congressional powers, such as the Necessary and Proper Clause or the Commerce Clause, this Court has generally sustained the statutes, despite their effect on matters ordinarily considered state concern. When federal power to regulate is found, its exercise is a matter for Congress.6 Where Congress has employed the taxing clause a greater variation in the decisions has resulted. The division in this Court has been more acute. Without any specific differentiation between the power to tax and other federal powers, the indirect results from the exercise of the power to tax have raised more doubts. This is strikingly illustrated by the shifting course of adjudication in taxation of the handling of narcotics.7 The tax ground in the Veazie Bank case, supra, recognized that strictly state governmental activities such as the right to pass laws were beyond the federal taxing power.8 That case allowed a tax, however, that obliterated from circulation all state bank notes. A reason was that 'the judicial cannot prescribe to the legislative departments of the government limitations upon the exercise of its acknowledged powers.' 8 Wall. at page 548. The tax cases cited above in the third preceding paragraph followed that theory. It is hard to understand why the power to tax should raise more doubts because of indirect effects than other federal powers.9 13 Penalty provisions in tax statutes added for breach of a regulation concerning activities in themselves subject only to state regulation have caused this Court to declare the enactments invalid.10 Unless there are provisions, extraneous to any tax need, courts are without authority to limit the exercise of the taxing power.11 All the provisions of this excise are adapted to the collection of a valid tax. 14 Nor do we find the registration requirements of the wagering tax offensive. All that is required is the filing of names, addresses, and places of business. This is quite general in tax returns.12 Such data are directly and intimately related to the collection of the tax and are 'obviously supportable as in aid of a revenue purpose.' Sonzinsky v. United States, 300 U.S. 506, at page 513, 57 S.Ct. 554, at page 555. The registration provisions make the tax simpler to collect. 15 Appellee's second assertion is that the wagering tax is unconstitutional because it is a denial of the privilege against self-incrimination as guaranteed by the Fifth Amendment. 16 Since appellee failed to register for the wagering tax, it is difficult to see how he can now claim the privilege even assuming that the disclosure of violations of law is called for. In United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, defendant was convicted of refusing to file an income tax return. It was assumed that his income 'was derived from business in violation of the National Prohibition Act'. 274 U.S. at page 263, 47 S.Ct. at page 607. 'As the defendant's income was taxed, the statute of course required a return. See United States v. Sischo, 262 U.S. 165, 43 S.Ct. 511, 67 L.Ed. 925. In the decision that this was contrary to the Constitution we are of opinion that the protection of the Fifth Amendment was pressed too far. If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.' 274 U.S. at page 263, 47 S.Ct. at page 607. 17 Assuming that respondent can raise the self-incrimination issue, that privilege has relation only to past acts, not to future acts that may or may not be committed. 8 Wigmore (od ed., 1940) § 2259(c). If respondent wishes to take wagers subject to excise taxes under § 3285, supra, he must pay an occupational tax and register. Under the registration provisions of the wagering tax, appellee is not compelled to confess to acts already committed, he is merely in formed by the statute that in order to engage in the business of wagering in the future he must fulfill certain conditions.13 18 Finally, we consider respondent's contention that the order of dismissal was correct because a conviction under the sections in question would violate the Due Process Clause because the classification is arbitrary and the statutory definitions are vague.14 The applicable definitions are 26 U.S.C. (Supp. V) § 3285(b), (d) and (e), 26 U.S.C.A. § 3285(b, d, e).15 The arbitrariness is said to arise from discrimination because some wagering activities are excluded. The Constitution does not require that a tax statute cover all phases of a taxed or licensed business.16 Respondent predicates vagueness of the statute upon the use, in defining the subject of the tax, of the description 'engaged in the business' of wagering and 'usually' in § 3285(b) (2). We have no doubt the definitions make clear the activities covered and excluded. 19 Reversed. 20 Mr. Justice JACKSON, concurring. 21 I concur in the judgment and opinion of the Court, but with such doubt that if the minority agreed upon an opinion which did not impair legitimate use of the taxing power I probably would join it. But we deal here with important and contrasting values in our scheme of government, and it is important that neither be allowed to destroy the other. 22 On the one hand, the Fifth Amendment provides that no person 'shall be compelled in any criminal case to be a witness against himself'. This has been broadly construed to confer immunity not only 'in any criminal case' but in any federal inquiry where the information might be useful later to convict of a federal crime. Extension of the immunity doctrines to the federal power to inquire as to income derived from violation of state penal laws would create a large number of immunities from reporting which would vary from state to state. Moreover, the immunity can be claimed without being established, otherwise one would be required to prove guilt to avoid admitting it. Sweeping and undiscriminating application of the immunity doctrines to taxation would almost give the taxpayer an option to refuse to report, as it now gives witnesses a virtual option to refuse to testify. The Fifth Amendment should not be construed to impair the taxing power conferred by the original Constitution, and especially by the Sixteenth Amendment, further than is absolutely required. 23 Of course, all taxation has a tendency proportioned to its burdensomeness to discourage the activity taxed. One cannot formulate a revenue-raising plan that would not have economic and social consequences. Congress may and should place the burden of taxes where it will least handicap desirable activities and bear most heavily on useless or harmful ones. If Congress may tax one citizen to the point of discouragement for making an honest living, it is hard to say that it may not do the same to another just because he makes a sinister living. If the law-abiding must tell all to the tax collector, it is difficult to excuse one because his business is law-breaking. Strangely enough, Fifth Amendment protection against self-incrimination has been refused to business as against inquisition by the regulatory power, Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, in what seemed to me a flagrant violation of it. See dissenting opinion, 335 U.S. at page 70, 68 S.Ct. 1410. 24 But here is a purported tax law which requires no reports and lays no tax except on specified gamblers whose calling in most states is illegal. It requires this group to step forward and identify themselves, not because they like others have income, but because of its source. This is difficult to regard as a rational or good-faith revenue measure, despite the deference that is due Congress. On the contrary, it seems to be a plan to tax out of existence the professional gambler whom it has been found impossible to prosecute out of existence. Few pursuits are entitled to less consideration at our hands than professional gambling, but the plain unwelcome fact is that it continues to survive because a large and influential part of our population patronizes and protects it. 25 The United States has a system of taxation by confession. That a people so numerous, scattered and individualistic annually assesses itself with a tax liability, often in highly burdensome amounts, is a reassuring sign of the stability and vitality of our system of self-government. What surprised me in once trying to help administer these laws was not to discover examples of recalcitrance, fraud or self-serving mistakes in reporting, but to discover that such derelictions were so few. It will be a sad day for the revenues if the good will of the people toward their taxing system is frittered away in efforts to accomplish by taxation moral reforms that cannot be accomplished by direct legislation. But the evil that can come from this statute will probably soon make itself manifest to Congress. The evil of a judicial decision impairing the legitimate taxing power by extreme constitutional interpretations might not be transient. Even though this statute approaches the fair limits of constitutionality, I join the decision of the Court. 26 Mr. Justice FRANKFURTER, dissenting. 27 The Court's opinion manifests a natural difficulty in reaching its conclusion. Constitutional issues are likely to arise whenever Congress draws on the taxing power not to raise revenue but to regulate conduct. This is so, of course, because of the distribution of legislative power as between the Congress and the State Legislatures in the regulation of conduct. 28 To review in detail the decisions of this Court, beginning with Veazie Bank v. Fenno, 8 Wall. 533, 19 L.Ed. 482, dealing with this ambivalent type of revenue enactment, would be to rehash the familiar. Two generalizations may, however, safely be drawn from this series of cases. Congress may make an oblique use of the taxing power in relation to activities with which Congress may deal directly, as for instance, commerce between the States. Thus, if the dissenting views of Mr. Justice Holmes in Hammer v. Dagenhart, 247 U.S. 251, 277, 38 S.Ct. 529, 533, 62 L.Ed. 1101, had been the decision of the Court, as they became in United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, the effort to deal with the problem of child labor through an assertion of the taxing power in the statute considered in Child Labor Tax Case, 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817, would by the latter case have been sustained. However, when oblique use is made of the taxing power as to matters which substantively are not within the powers delegated to Congress, the Court cannot shut its eyes to what is obviously, because designedly, an attempt to control conduct which the Constitution left to the responsibility of the States, merely because Congress wrapped the legislation in the verbal cellophane of a revenue measure. 29 Concededly the constitutional questions presented by such legislation are difficult. On the one hand, courts should scrupulously abstain from hobbling congressional choice of policies, particularly when the vast reach of the taxing power is concerned. On the other hand, to allow what otherwise is excluded from congressional authority to be brought within it by casting legislation in the form of a revenue measure could, as so significantly expounded in the Child Labor Tax Case, supra, offer an easy way for the legislative imagination to control 'any one of the great number of subjects of public interest, jurisdiction of which the states have never parted with * * *.' Child Labor Tax Case, 259 U.S. at page 38, 42 S.Ct. at page 451, I say 'significantly' because Mr. Justice Holmes and two of the Justices who had joined his dissent in Hammer v. Dagenhart, McKenna and Brandeis, JJ., agreed with the opinion in the Child Labor Tax Case. Issues of such gravity affecting the balance of powers within our federal system are not susceptible of comprehensive statement by smooth formulas such as that a tax is nonetheless a tax although it discourages the activities taxed, or, that a tax may be imposed although it may effect ulterior ends. No such phrase, however fine and well-worn, enables one to decide the concrete case. 30 What is relevant to judgment here is that, even if the history of this legislation as it went through Congress did not give one the libretto to the song, the context of the circumstances which brought forth this enactment—sensationally exploited disclosures regarding gambling in big cities and small, the relation of this gambling to corrupt politics, the impatient public response to these disclosures, the feeling of ineptitude or paralysis on the part of local law-enforcing agencies—emphatically supports what was revealed on the floor of Congress, namely, that what was formally a means of raising revenue for the Federal Government was essentially an effort to check if not to stamp out professional gambling. 31 A nominal taxing measure must be found an inadmissible intrusion into a domain of legislation reserved for the States not merely when Congress requires that such a measure is to be enforced through a detailed scheme of administration beyond the obvious fiscal needs, as in the Child Labor Tax Case, supra. That is one ground for holding that Congress was constitutionally disrespectful of what is reserved to the States. Another basis for deeming such a formal revenue measure inadmissible is presented by this case. In addition to the fact that Congress was concerned with activity beyond the authority of the Federal Government, the enforcing provision of this enactment is designed for the systematic confession of crimes with a view to prosecution for such crimes under State law. 32 It is one thing to hold that the exception, which the Fifth Amendment makes to the duty of a witness to give his testimony when relevant to a proceeding in a federal court, does not include the potential danger to that witness of possible prosecution in a State court, Brown v. Walker, 161 U.S. 591, 606, 16 S.Ct. 644, 650, 40 L.Ed. 819 and, conversely, that the Fifth Amendment does not enable States to give immunity from use in federal courts of testimony given in a State court. Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408. It is a wholly different thing to hold that Congress, which cannot constitutionally grapple directly with gambling in the States, may compel self-incriminating disclosures for the enforcement of State gambling laws, merely because it does so under the guise of a revenue measure obviously passed not for revenue purposes. The motive of congressional legislation is not for our scrutiny, provided only that the ulterior purpose is not expressed in ways which negative what the revenue words on their face express and, which do not seek enforcement of the formal revenue purpose through means that offend those standards of decency in our civilization against which due process is a barrier. 33 I would affirm this judgment. 34 Mr. Justice DOUGLAS, while not joining in the entire opinion, agrees with the views expressed herein that this tax is an attempt by the Congress to control conduct which the Constitution has left to the responsibility of the States. 35 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting. 36 The Fifth Amendment declares that no person 'shall be compelled in any criminal case to be a witness against himself'. The Court nevertheless here sustains an Act which requires a man to register and confess that he is engaged in the business of gambling. I think this confession can provide a basis to convict him of a federal crime for having gambled before registration without paying a federal tax. 26 U.S.C. (Supp. V) §§ 3285, 3290, 3291, 3294, 26 U.S.C.A. §§ 3285, 3290, 3291, 3294. Whether or not the Act has this effect, I am sure that it creates a squeezing device contrived to put a man in federal prison if he refuses to confess himself into a state prison as a violator of state gambling laws.* The coercion of confessions is a common but justly criticized practice of many countries that do not have or live up to a Bill of Rights. But we have a Bill of Rights that condemns coerced confessions, however refined or legalistic may be the technique of extortion. I would hold that this Act violates the Fifth Amendment. See my dissent in Feldman v. United States, 322 U.S. 487, 494—503, 64 S.Ct. 1082, 1085—1089, 88 L.Ed. 1408. 1 26 U.S.C. (Supp. V) § 3285, 26 U.S.C.A. § 3285: '(a) Wagers. 'There shall be imposed on wagers, as defined in subsection (b), an excise tax equal to 10 per centum of the amount thereof. '(d) Persons liable for tax. 'Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subchapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and shall pay the tax under this subchapter on all wagers placed in such pool or lottery. '(e) Exclusions from tax. 'No tax shall be imposed by this subchapter (1) on any wager placed with, or on any wager placed in a wagering pool conducted by, a parimutuel wagering enterprise licensed under State law, and (2) on any wager placed in a coin-operated device with respect to which an occupational tax is imposed by section 3267.' 26 U.S.C. (Supp. V) § 3290, 26 U.S.C.A. § 3290: 'A special tax of $50 per year shall be paid by each person who is liable for tax under subchapter A or who is engaged in receiving wagers for or on behalf of any person so liable.' 26 U.S.C. (Supp. V) § 3291, 26 U.S.C.A. § 3291: '(a) Each person required to pay a special tax under this subchapter shall register with the collector of the district— '(1) his name and place of residence; '(2) if he is liable for tax under subchapter A, each place of business where the activity which makes him so liable is carried on, and the name and place of residence of each person who is engaged in receiving wagers for him or on his behalf; and '(3) if he is engaged in receiving wagers for or on behalf of any person liable for tax under subchapter A, the name and place of residence of each such person.' 26 U.S.C. (Supp. V) § 3294, 26 U.S.C.A. § 3294: '(a) Failure to pay tax. 'Any person who does any act which makes him liable for special tax under this subchapter, without having paid such tax, shall, besides being liable to the payment of the tax, be fined not less than $1,000 and not more than $5,000. '(c) Willful violations. 'The penalties prescribed by section 2707 with respect to the tax imposed by section 2700 shall apply with respect to the tax imposed by this subchapter.' 2 United States v. Smith, D.C.S.D.Cal., 106 F.Supp. 9; United States v. Nadler, D.C.N.D.Cal., 105 F.Supp. 918; United States v. Forrester, D.C.N.D.Ga., 105 F.Supp. 136; United States v. Robinson, D.C.E.D.Mich., 107 F.Supp. 38; United States v. Arnold, Jordan and Wingate, No. 478, D.C.E.D.Va. Sept. 18, 1952; United States v. Penn, D.C.M.D.N.C.1953, 111 F.Supp. 605; Combs v. Snyder, D.C.D.C., 101 F.Supp. 531, affirmed, 342 U.S. 939, 72 S.Ct. 562. 3 There are suggestions in the debates that Congress sought to hinder, if not prevent the type of gambling taxed. See 97 Cong.Rec. 6892: 'Mr. Hoffman of Michigan. Then I will renew my observation that it might if properly construed be considered an additional penalty on the illegal activities. 'Mr. Cooper. Certainly, and we might indulge the hope that the imposition of this type of tax would eliminate that kind of activity.' 97 Cong.Rec. 12236: 'If the local official does not want to enforce the law and no one catches him winking at the law, he may keep on winking at it, but when the Federal Government identifies a law violator and the local newspaper gets hold of it and the local church organizations get hold of it and the people who do want the law enforced get hold of it, they say, 'Mr. Sheriff, what about it? We understand that there is a place down here licensed to sell liquor.' He says, 'Is that so? I will put him out of business." 4 One of the indicia which appellee offers to support his contention that the wagering tax is not a proper revenue measure is that the tax amount collected under it was $4,371,869 as compared with an expected amount of $400,000,000 a year. The figure of $4,371,869, however, is relatively large when it is compared with the $3,501 collected under the tax on adulterated and process or renovated butter and filled cheese, the $914,910 collected under the tax on narcotics, including marihuana and special taxes, and the $28,911 collected under the tax on firearms transfer and occupational taxes. (Summary of Internal Revenue Collections, released by Bureau of Internal Revenue, October 3, 1952.) 5 But see the argument for defendant in the Child Labor Tax Case (Bailey v. Drexel Furniture Co.), 259 U.S. 20, 30, 42 S.Ct. 449, 66 L.Ed. 817. 6 McCulloch v. Maryland, 4 Wheat. 316, 472, 4 L.Ed. 579, upheld the creation of a bank under the necessary and proper clause. Veazie Bank v. Fenno, 8 Wall. 533, 548, 19 L.Ed. 482, depends partly on the alternate ground of the federal power to provide money for circulation. In re Rapier, 143 U.S. 110, 111, 12 S.Ct. 374, 36 L.Ed. 93, the use of the mails by papers that advertised the Louisiana Lottery was barred. The Lottery Case (Champion v. Ames) 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492, approved the same result through the commerce power. That power was enough to bar transportation of pictures of prize fights, Weber v. Freed, 239 U.S. 325, 36 S.Ct. 131, 60 L.Ed. 308; to seize contraband eggs after shipment had ended, Hipolite Egg Co. v. United States, 220 U.S. 45, 56, 31 S.Ct. 364, 366, 55 L.Ed. 364; and to bar transportation of women for immoral purposes, Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442. While in United States v. Butler, 297 U.S. 1, 68, 73, 56 S.Ct. 312, 320, 322, 80 L.Ed. 477, a use of a tax for regulation was disapproved, an enactment that resulted in regulation under the Commerce Clause met judicial favor. Mulford v. Smith, 307 U.S. 38, 47, 59 S.Ct. 648, 652, 83 L.Ed. 1092; Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Hill v. Wallace, 259 U.S. 44, 67, 42 S.Ct. 453, 457, 66 L.Ed. 822, and Trusler v. Crooks, 269 U.S. 475, 46 S.Ct. 165, 70 L.Ed. 365, based on taxation, held taxes that regulated the grain markets were unconstitutional as an interference with state power. In Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 4, 43 S.Ct. 470, 471, 67 L.Ed. 839, regulations based on the Commerce Clause were upheld. The departure from this line of decisions in Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101, was reversed in United States v. Darby, 312 U.S. 100, 115—124, 61 S.Ct. 451, 457—462, 85 L.Ed. 609, where we said: 'Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause.' 312 U.S. at page 115, 61 S.Ct. at page 457. 'The power of Congress over interstate commerce * * * extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce.' 312 U.S. at page 118, 61 S.Ct. at page 459. 7 United States v. Jin Fuey Moy, 241 U.S. 394, 402, 36 S.Ct. 658, 659, 60 L.Ed. 1061; United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493; Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819; Nigro v. United States, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600. 8 Cf. State of New York v. United States, 326 U.S. 572, 582, 587—588, 66 S.Ct. 310, 314, 316—317, 90 L.Ed. 326. 9 Cf. McCulloch v. Maryland, 4 Wheat. at page 422, 4 L.Ed. 579. 10 Child Labor Tax Case, 259 U.S. 20, 34, 38, 42 S.Ct. 449, 451, 66 L.Ed. 817; Hill v. Wallace, 259 U.S. 44, 63, 70, 42 S.Ct. 453, 456, 458, 66 L.Ed. 822; United States v. Constantine, 296 U.S. 287, 56 S.Ct. 223, 80 L.Ed. 233. 11 But see Linder v. United States, 268 U.S. 5, 18, 45 S.Ct. 446, 449, 69 L.Ed. 819; Trusler v. Crooks, 269 U.S. 475, 46 S.Ct. 165, 70 L.Ed. 365. 12 26 U.S.C. § 2011 et seq., 26 U.S.C.A. § 2011 et seq., require registration by tobacco manufacturers, dealers and peddlers of the 'name, or style, place of residence, trade, or business, and the place where such trade or business is to be carried on.' 26 U.S.C. § 2810, 26 U.S.C.A. § 2810, requires the possessor of distilling apparatus to register 'the particular place where such still or distilling apparatus is set up * * * the owner thereof, his place of residence * * *.' See also 26 U.S.C. § 3270, 26 U.S.C.A. § 3270. 13 Cf. Davis v. United States, 328 U.S. 582, 590, 66 S.Ct. 1256, 1259, 90 L.Ed. 1453; Shapiro v. United States, 335 U.S. 1, 35, 68 S.Ct. 1375, 1393, 92 L.Ed. 1787; see E. Fougera & Co. v. City of New York, 224 N.Y. 269, 281, 120 N.E. 642, 1 A.L.R. 1467. 14 These defenses are open under the demurrer to facts alleged in the indictment and the judgment of dismissal although the opinion of the District Court relied only upon usurpation of state police power by the federal enactment. United States v. Curtis-Wright Corp., 299 U.S. 304, 330, 57 S.Ct. 216, 225, 81 L.Ed. 255. Compare United States v. Beacon Brass Co., 344 U.S. 43, 73 S.Ct. 77. 15 26 U.S.C. (Supp. V) § 3285, 26 U.S.C.A. § 3285: '(b) Definitions. 'For the purposes of this chapter— '(1) The term 'wager' means (A) any wager with respect to a sports event or a contest placed with a person engaged in the business of accepting such wagers, (B) any wager placed in a wagering pool with respect to a sports event or a contest, if such pool is conducted for profit, and (C) any wager placed in a lottery conducted for profit. '(2) The term 'lottery' includes the numbers game, policy, and similar types of wagering. The term does not include (A) any game of a type in which usually (i) the wagers are placed, (ii) the winners are determined, and (iii) the distribution of prizes or other property is made, in the presence of all persons placing wagers in such game, and (B) any drawing conducted by an organization exempt from tax under section 101, if no part of the net proceeds derived from such drawing inures to the benefit of any private shareholder or individual.' 16 Steward Machine Co. v. Davis, 301 U.S. 548, 584, 57 S.Ct. 883, 889, 81 L.Ed. 1279. * In Pennsylvania, where this defendant is accused of having gambled, such conduct is a crime punishable by 'separate or solitary' imprisonment. Purdon's Pa.Stat.Ann., 1945, Tit. 18, §§ 4601, 4602, 4603.
01
345 U.S. 100 73 S.Ct. 552 97 L.Ed. 852 AMERICAN NEWSPAPER PUBLISHERS ASS'Nv.NATIONAL LABOR RELATIONS BOARD. No. 53. Argued Nov. 19, 1952. Decided March 9, 1953. Mr. Elisha Hanson, Washington, D.C., for petitioner. Mr. Bernard Dunau, Washington, D.C., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 The question here is whether a labor organization engages in an unfair labor practice, within the meaning of § 8(b)(6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947,1 when it insists that newspaper publishers pay printers for reproducing advertising matter for which the publishers ordinarily have no use. For the reasons hereafter stated, we hold that it does not. 2 Petitioner, American Newspaper Publishers Association, is a New York corporation the membership of which includes more than 800 newspaper publishers. They represent over 90% of the circulation of the daily and Sunday newspapers in the United States and carry over 90% of the advertising published in such papers. 3 In November, 1947, petitioner filed with the National Labor Relations Board charges that the International Typographical Union, here called ITU, and its officers were engaging in unfair labor practices within the meaning of § 8(b) (1), (2) and (6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, here called the Taft-Hartley Act.2 The Regional Director of the Board issued its complaint, including a charge of engaging in an unfair labor practice as defined in § 8(b)(6), popularly known as the 'anti-featherbedding' section of the Act. It is not questioned that the acts complained of affected interstate commerce. 4 The trial examiner recommended that ITU be ordered to cease and desist from several of its activities but that the 'featherbedding' charges under § 8(b)(6) be dismissed. 86 N.L.R.B. 951, 964, 1024—1033. The Board dismissed those charges. 86 N.L.R.B., at pages 951, 963. Petitioner then filed the instant proceeding in the Court of Appeals for the Seventh Circuit seeking review and modification of the Board's orders. That court upheld the Board's dismissal of all charges under § 8(b)(6). 193 F.2d 782, 796, 802. See also, 7 Cir., 190 F.2d 45. A comparable view was expressed in Rabouin v. National Labor Relations Board, 2 Cir., 195 F.2d 906, 912—913, but a contrary view was taken in Gamble Enterprises v. National Labor Relations Board, 6 Cir., 196 F.2d 61. Because of this claimed conflict upon an important issue of first impression, we granted certiorari in the instant case, 344 U.S. 812, 73 S.Ct. 10,3 and in National Labor Relations Board v. Gamble Enterprises, 344 U.S. 814, 73 S.Ct. 43, Id., 344 U.S. 872, 73 S.Ct. 165. Our decision in the Gamble case (National Labor Relations Board v. Gamble Enterprises, Inc.) follows this, 345 U.S. 117, 73 S.Ct. 560.4 5 Printers in newspaper composing rooms have long sought to retain the opportunity to set up in type as much as possible of whatever is printed by their respective publishers. In 1872, when printers were paid on a piecework basis, each diversion of composition was at once reflected by a loss in their income. Accordingly, ITU, which had been formed in 1852 from local typographical societies, began its long battle to retain as much typesetting work for printers as possible. 6 With the introduction of the linotype machine in 1890, the problem took on a new aspect. When a newspaper advertisement was set up in type, it was impressed on a cardboard matrix, or 'mat.' These mats were used by their makers and also were reproduced and distributed, at little or no cost, to other publishers who used them as molds for metal castings from which to print the same advertisement. This procedure by-passed all compositors except those who made up the original form. Facing this loss of work, ITU secured the agreement of newspaper publishers to permit their respective compositors, at convenient times, to set up duplicate forms for all local advertisements in precisely the same manner as though the mat had not been used. For this reproduction work the printers received their regular pay. The doing of this 'made work' came to be known in the trade as 'setting bogus.' It was a wasteful procedure. Nevertheless, it has become a recognized idiosyncrasy of the trade and a customary feature of the wage structure and work schedule of newspaper printers. 7 By fitting the 'bogus' work into slack periods, the practice interferes little with 'live' work. The publishers who set up the original compositions find it advantageous because its burdens their competitors with costs of mat making comparable to their own. Approximate time limits for setting 'bogus' usually have been fixed by agreement at from four days to three weeks. On rare occasions the reproduced compositions are used to print the advertisements when rerun, but, ordinarily, they are promptly consigned to the 'hell box' and melted down. Live matter has priority over reproduction work but the latter usually takes from 2 to 5% of the printers' time.5 By 1947, detailed regulations for reproduction work were included in the 'General Laws' of ITU. They thus became a standard part of all employment contracts signed by its local unions. The locals were allowed to negotiate as to foreign language publications, time limits for setting 'bogus' and exemptions of mats received from commercial compositors or for national advertisements. 8 Before the enactment of § 8(b)(6), the legality and enforceability of payment for setting 'bogus,' agreed to by the publisher was recognized. Even now the issue before us is not what policy should be adopted by the Nation toward the continuance of this and other forms of featherbedding. The issue here is solely one of statutory interpretation: Has Congress made setting 'bogus' an unfair labor practice? 9 While the language of § 8(b)(6) is claimed by both sides to be clear, yet the conflict between the views of the Seventh and Sixth Circuits amply justifies our examination of both the language and the legislative history of the section. The section reads: 10 'Sec. 8. * * * 11 '(b) It shall be an unfair labor practice for a labor organization or its agents— 12 '(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. * * *' 61 Stat. 140 142, 29 U.S.C. (Supp. V) § 158(b)(6), 29 U.S.C.A. § 158(b)(6). 13 From the above language and its history, the court below concluded that the insistence by ITU upon securing payment of wages to printers for setting 'bogus' was not an unfair labor practice. It found that the practice called for payment only for work which actually was done by employees of the publishers in the course of their employment as distinguished from payment 'for services which are not performed or not to be performed.' Setting 'bogus' was held to be service performed and it remained for the parties to determine its worth to the employer. The Board here contends also that the insistence of ITU and its agents has not been 'in the nature of an exaction' and did not 'cause or attempt to cause an employer' to pay anything 'in the nature of an exaction'. Agreement with the position taken by the court below makes it unnecessary to consider the additional contentions of the Board. 14 However desirable the elimination of all industrial featherbedding practices may have appeared to Congress, the legislative history of the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., demonstrates that when the legislation was put in final form Congress decided to limit the practice but little by law. 15 A restraining influence throughout this congressional consideration or featherbedding was the fact that the constitutionality of the Lea Act penalizing featherbedding in the broadcasting industry was in litigation. That Act, known also as the Petrillo Act, had been adopted April 16, 1946, as an amendment to the Communications Act of 1934, 47 U.S.C.A. § 151 et seq. Its material provisions are stated in the margin.6 December 2, 1946, the United States District Court for the Northern District of Illinois held that it violated the First, Fifth and Thirteenth Amendments to the Constitution of the United States. United States v. Petrillo D.C., 68 F.Supp. 845. The case was pending here on appeal throughout the debate on the Taft-Hartley bill. Not until June 23, 1947, on the day of the passage of the Taft-Hartley bill over the President's veto, was the constitutionality of the Lea Act upheld. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877.7 16 The purpose of the sponsors of the Taft-Hartley bill to avoid the controversial features of the Lea Act is made clear in the written statement which Senator Taft, cosponsor of the bill and Chairman of the Senate Committee on Labor and Public Welfare, caused to be incorporated in the proceedings of the Senate, June 5, 1947. Referring to the substitution of § 8(b)(6) in place of the detailed featherbedding provisions of the House bill that statement said: 17 'The provisions in the Lea Act from which the House language was taken are now awaiting determination by the Supreme Court, partly because of the problem arising from the term 'in excess of the number of employees reasonably required.' Therefore, the conferees were of the opinion that general legislation on the subject of featherbedding was not warranted at least until the joint study committee proposed by this bill could give full consideration to the matter.' 93 Cong.Rec. 6443.8 18 On the same day this was amplified in the Senator's oral statement on the floor of the Senate: 19 'There is one further provision which may possibly be of interest, which was not in the Senate bill. The House had rather elaborate provisions prohibiting so-called feather-bedding practices and making them unlawful labor practices. The Senate conferees, while not approving of feather-bidding practices, felt that it was impracticable to give to a board or a court the power to say that so many men are all right, and so many men are too many. It would require a practical application of the law by the courts in hundreds of different industries, and a determination of facts which it seemed to me would be almost impossible. So we declined to adopt the provisions which are now in the Petrillo Act. After all, that statute applies to only one industry. Those provisions are now the subject of court procedure. Their constitutionality has been questioned. We thought that probably we had better wait and see what happened, in any event, even though we are in favor of prohibiting all feather-bedding practices. However, we did accept one provision which makes it an unlawful-labor practice for a union to accept money for people who do not work. That seemed to be a fairly clear case, easy to determine, and we accepted that additional unfair labor practice on the part of unions, which was not in the Senate bill.' 93 Cong.Rec. 6441. See also, his supplementary analysis inserted in the Record June 12, 1947. 93 Cong.Rec. 6859. 20 As indicated above, the Taft-Hartley bill, H.R.3020, when it passed the House, April 17, 1947, contained in §§ 2(17) and 12(a)(3)(B) an explicit condemnation of featherbidding. Its definition of featherbedding was based upon that in the Lea Act. For example, it condemned practices which required an employer to employ 'persons in excess of the number of employees reasonably required by such employer to perform actual services,' as well as practices which required an employer to pay 'for services * * * which are not to be performed.'9 The substitution of the present § 8(b)(6) for that definition compels the conclusion that § 8(b)(6) means what the court below has said it means. The Act now limits its condemnation to instances where a labor organization or its agents exact pay from an employer in return for services not performed or not to be performed. Thus, where work is done by an employee, with the employer's consent, a labor organization's demand that the employee be compensated for time spent in doing the disputed work does not become an unfair labor practice. The transaction simply does not fall within the kind of featherbedding defined in the statute. In the absence of proof to the contrary, the employee's compensation reflects his entire relationship with his employer. 21 We do not have here a situation comparable to that mentioned by Senator Taft as an illustration of the type of featherbedding which he would consider an unfair labor practice within the meaning of § 8(b)(6). June 5, 1947, in a colloquy on the floor of the Senate he said in reference to § 8(b)(6): 22 '(I)t seems to me that it is perfectly clear what is intended. It is intended to make it an unfair labor practice for a man to say, 'You must have 10 musicians, and if you insist that there is room for only 6, you must pay for the other 4 anyway.' That is in the nature of an exaction from the employer for services which he does not want, does not need, and is not even willing to accept.' 93 Cong.Rec. 6446. 23 In that illustration the service for which pay was to be exacted was not performed and was not to be performed by anyone.10 The last sentence of the above quotation must be read in that context. There was no room for more than six musicians and there was no suggestion that the excluded four did anything or were to do anything for their pay. Section 8(b)(6) leaves to collective bargaining the determination of what, if any, work, including bona fide 'made work,' shall be included as compensable services and what rate of compensation shall be paid for it. 24 Accordingly, the judgment of the Court of Appeals sustaining dismissal of the complaint, insofar as it was based upon § 8(b)(6), is affirmed. 25 Affirmed. 26 Mr. Justice DOUGLAS, dissenting. 27 I fail to see how the reproduction of advertising matter which is never used by a newspaper but which indeed is set up only to be thrown away is a service performed for the newspaper. The practice of 'setting bogus' is old and deeply engrained in trade union practice. But so are other types of 'feather-bedding.' Congress, to be sure, did not outlaw all 'feather-bedding' by the Taft-Hartley Act. That Act leaves unaffected the situation where two men are employed to do one man's work. It also, in my view, leaves unaffected the situation presented in National Labor Relations Board v. Gamble Enterprises, Inc., 345 U.S. 117, 73 S.Ct. 560. 28 Mr. Justice Jackson labels the services tendered in that case as 'useless and unwanted work.' Certainly it was 'unwanted' by the employer—as much unwanted as putting on two men to do one man's work. But there is no basis for saying that those services were 'useless.' They were to be performed in the theatres, providing music to the audiences. The Gamble Enterprises case is not one where the employer was forced to hire musicians who were not used. They were to be used in the theatrical program offered the public. Perhaps the entertainment would be better without them. But to conclude with Mr. Justice Jackson that it would be better would be to rush in where Congress did not want to tread. For Senator Taft reported from Conference that 'The Senate conferees, while not approving of feather-bedding practices, felt that it was impracticable to give to a board or a court the power to say that so many men are all right, and so many men are too many.' 93 Cong.Rec. 6441. 29 But the situation in this case is to me quite different. Here the typesetters, while setting the 'bogus,' are making no contribution whatsoever to the enterprise. Their 'work' is not only unwanted, it is indeed wholly useless. It does not add directly or indirectly to the publication of the newspaper nor to its contents. It does not even add an 'unwanted' page or paragraph. In no sense that I can conceive is it a 'service' to the employer. To be sure, the employer has agreed to pay for it. But the agreement was under compulsion. The statute does not draw the distinction Mr. Justice Jackson tenders. No matter how time-honored the practice, it should be struck down if it is not a service performed for an employer. 30 The outlawry of this practice under § 8(b)(6) of the Taft-Hartley Act might be so disruptive of established practices as to be against the public interest. But the place to obtain relief against the new oppression is in the Congress, not here. 31 Mr. Justice CLARK, with whom The CHIEF JUSTICE joins, dissenting. 32 Today's decision twists the law by the tail. If the employees had received pay for staying home, conserving their energies and the publisher's material, the Court concedes, as it must, that § 8(b)(6) of the National Labor Relations Act would squarely apply. Yet in the Court's view these printers' peculiar 'services' snatch the transaction from the reach of the law. Those 'services,' no more and no less, consist of setting 'bogus' type, then proofread and reset for corrections, only to be immediately discarded and never used. Instead, this type is consigned as waste to a 'hell box' which feeds the 'melting pot'; that, in turn, oozes fresh lead then molded into 'pigs' which retravel the same Sisyphean journey. The Court thus holds that an 'anti-featherbedding' statute designed to hit wasteful labor practices in fact sanctions additional waste in futile use of labor, lead, machines, proofreading, 'hell-boxing,' etc. Anomalously, the more wasteful the practice the less effectual the statute is. 33 Section 8(b)(6) declares it an unfair labor practice for a labor organization or its agents 'to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed.'1 But 'to cause or attempt to cause' can refer equally to the ordinary give-and-take of the collective bargaining process or the unleashing of the ultimate weapons in a union's armory. Likewise, 'in the nature of an exaction' may imply that a union's pay demands must be tantamount to extortion to bring § 8(b)(6) into play; on the other hand, the phrase may merely describe payments 'for services which are not performed or not to be performed.' Again, 'services' may designate employees' conduct ranging from shadow boxing on or off the plant to productive effort deemed beneficial to the employer in his judgment alone. 34 The Court solves these complex interpretive problems by simply scrapping the statute. A broadside finding that 'bogus' is 'work,' making analysis of all other statutory criteria superfluous, automatically takes the case out of § 8(b)(6). And the printers' doing solely that which then must be undone passes for 'work.' An imaginative labor organization need not strain far to invent such 'work.' With that lethal definition to stifle § 8(b)(6), this Court's first decision on 'featherbedding' may well be the last. 35 Concededly, § 8(b)(6) was not designed to ban every make-work device ingenuity could spawn. Senator Taft, the prime exponent of the section as ultimately enacted, advised that general 'featherbedding' legislation be held an abeyance pending this Court's decision in United States v. Petrillo.2 Meanwhile, however, § 8(b)(6) aimed to catch practices by which unions 'accept money for people who do not work.'3 He considered it a 'perfectly clear' violation of the section 'for a man to say, 'You must have 10 (employees), and if you insist there is room for only 6, you must pay for the other 4 anyway."4 But surely this cannot imply that six must pack the plant to overflow so that 'the other 4' must stay home before § 8(b)(6) may apply. That quaint notion befogs the draftsmen's clear intent that § 8(b)(6) strike at union pay demands 'for services which (the employer) does not want, does not need, and is not even willing to accept.'5 36 Accordingly, we would read the statute's test of 'services' as more than a hollow phrase. Recognizing the administrative difficulties in deciding how many employees are too many for a particular job, Congress perhaps spared the National Labor Relations Board from that.6 But the Board should certainly not need efficiency engineers to determine that printers setting 'bogus' indulge in frivolous make-work exercise. An interpretation of 'services' in § 8(b)(6) to exclude contrived and patently useless job operations not to the employer's benefit could effectuate the legislative purpose. Cf. Tennessee Coal, Iron & R. Co. v. Muscoda Local, 1944, 321 U.S. 590, 598—599, 64 S.Ct. 698, 703, 88 L.Ed. 949; Jewell Ridge Coal Corp. v. Local No. 6167, 1945, 325 U.S. 161, 165—166, 65 S.Ct. 1063, 1065—1066, 89 L.Ed. 1534; Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 691 693, 66 S.Ct. 1187, 1194—1195, 90 L.Ed. 1515. And the Labor Board should not so modestly disclaim its oft-recognized expertise which assures full qualifications for administering this task. 37 It may well be that union featherbedding practices reflect no more than labor's fears of unstable employment and sensitivity to displacement by technological change. But in a full-employment economy Congress may have deemed this form of union security an unjustifiable drain on the national manpower pool. In any event, that judgment was for the legislature. Under our system of separation of powers the Court ought not so blithely mangle the congressional effort. 1 'Sec. 8. * * * '(b) It shall be an unfair labor practice for a labor organization or its agents— '(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. * * *' 61 Stat. 140—142, 29 U.S.C. (Supp. V) § 158(b)(6), 29 U.S.C.A. § 158(b)(6). 2 49 State. 449, 29 U.S.C. § 151 et seq., as amended, 61 Stat. 140—142, 29 U.S.C. (Supp. V) § 158(b)(1), (2) and (6), 29 U.S.C.A. §§ 151 et seq., 158(b) (1, 2, 6). 3 The grant was— 'limited to question No. 2 presented by the petition for the writ, i.e.: "Whether the demand and insistence of the International Typographical Union that publishers pay employees in their composing rooms for setting 'bogus' violated Section 8(b)(6) of the National Labor Relations Act in view of the fact that composing room employees perform no service incident or essential to the production of a newspaper in their handling of such 'bogused' material." 4 For a general discussion of the problems in these cases, see Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 274, 288—290; Featherbedding and Taft-Hartley, 52 Col.L.Rev. 1020—1033. 5 In metropolitan areas, only the printers on the 'ad said' of a composing room, as contrasted with those on the 'news side,' take part in the reproduction work and never on a full-time basis. Such work is not done at overtime rates but when there is an accumulation of it, the newspaper is not permitted to reduce its work force or decline to hire suitable extra printers applying for employment. The trial examiner, in the instant case, found that reproduction work at the Rochester Democrat & Chronical cost over $5,000 a year, at the Chicago Herald-American, about $50,000, and at the New York Times, about $150,000. 6 '§ 506. (a) It shall be unlawful, by the use or express or implied threat of the use of force, violence, intimidation, or duress, or by the use or express or implied threat of the use of other means, to coerce, compel or constrain or attempt to coerce, compel, or constrain a licensee— '(1) to employ or agree to employ, in connection with the conduct of the broadcasting business of such licensee, any person or persons in excess of the number of employees needed by such licensee to perform actual services; or '(2) to pay or give or agree to pay or give any money or other thing of value in lieu of giving, or on account of failure to give, employment to any person or persons, in connection with the conduct of the broadcasting business of such licensee, in excess of the number of employees needed by such licensee to perform actual services; or '(3) to pay or agree to pay more than once for services performed in connection with the conduct of the broadcasting business of such licensee; or '(4) to pay or give or agree to pay or give any money or other thing of value for services, in connection with the conduct of the broadcasting business of such licensee, which are not to be performed; * * *. '(c) The provisions of subsection (a) or (b) of this section shall not be held to make unlawful the enforcement or attempted enforcement, by means lawfully employed, of any contract right heretofore or hereafter existing or of any legal obligation heretofore or hereafter incurred or assumed. '(d) Whoever willfully violates any provision of subsection (a) or (b) of this section shall, upon conviction thereof, be punished by imprisonment for not more than one year or by a fine of not more than $1,000, or both. * * *' 60 Stat. 89, 90, 47 U.S.C. § 506(a, c, d), 47 U.S.C.A. § 506(a, c, d). 7 For a report of the subsequent trial and acquittal on the merits, see United States v. Petrillo, D.C., 75 F.Supp. 176. 8 In its report of December 31, 1948, the Joint Committee on Labor-Management Relations, established under § 401 of the Taft-Hartley Act, later reviewed the litigation arising under § 8(b)(6), including the trial examiner's report in the instant case, and recommended 'a continuing study of cases arising under the present featherbedding provision, since there has not been sufficient experience upon which to base intelligent amendments at this time.' S.Rep.No.986, Pt. 3, 82th Cong., 2d Sess. 61, and see pp. 58—61. See also, Hartley, Our New National Labor Policy (1948), p. xiii (Taft), 174, 182—183 (Hartley). 9 H.R. 3020 as it passed the House provided that: 'Sec. 2. When used in this Act— '(17) The term 'featherbedding practice' means a practice which has as its purpose or effect requiring an employer— '(A) to employ or agree to employ any person or persons in excess of the number of employees reasonably required by such employer to perform actual services; or '(B) to pay or give or agree to pay or give any money or other thing of value in lieu of employing, or on account of failure to employ, any person or persons, in connection with the conduct of the business of an employer, in excess of the number of employees reasonably required by such employer to perform actual services; or '(C) to pay or agree to pay more than once for services performed; or '(D) to pay or give or agree to pay or give any money or other thing of value for services, in connection with the conduct of a business, which are not to be performed; or '(E) to pay or agree to pay any tax or exaction for the privilege of, or on account of, producing, preparing, manufacturing, selling, buying, renting, operating, using, or maintaining any article, machine, equipment, or materials; or to accede to or impose any restriction upon the production, preparation, manufacture, sale, purchase, rental, operation, use, or maintenance of the same, if such restriction is for the purpose of preventing or limiting the use of such article, machine, equipment, or materials. 'Sec. 12. (a) The following activities, when affecting commerce, shall be unlawful concerted activities: '(3) Calling, authorizing, engaging in, or assisting— '(B) any strike or other concerted interference with an employer's operations, an object of which is to compel an employer to accede to featherbedding practices; * * *.' 1 Legislative History of the Labor Management Relations Act, 1947, 160, 170—171, 204, 205. 10 Section 8(b)(6) does not relate to union requests for, or insistence upon, such types of payments as employees' wages during lunch, rest, waiting or vacation periods; payments for service on relief squads; or payments for reporting for duty to determine whether work is to be done. Such practices are recognized to be incidental to the employee's general employment and are given consideration in fixing the rate of pay for it. They are not in the nature of exactions of pay for something not performed or not to be performed. See 93 Cong.Rec. 6859. 1 29 U.S.C. (Supp. V) § 158(b)(6), 29 U.S.C.A. § 158(b)(6). (Emphasis added.) 2 1947, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. See 93 Cong.Rec. 6441, 6443. In the Petrillo case we upheld, against claims including unconstitutional vagueness, the provisions of the Lea Act, 47 U.S.C. § 506, 47 U.S.C.A. § 506, which banned various 'featherbedding' practices plaguing broadcast licensees. 3 93 Cong.Rec. 6441. 4 93 Cong.Rec. 6446. 5 Ibid. 6 See 93 Cong.Rec. 6441, 6443.
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345 U.S. 41 73 S.Ct. 543 97 L.Ed. 770 UNITED STATESv.RUMELY. No. 87. Argued Dec. 11, 12, 1952. Decided March 9, 1953. Mr. Oscar H. Davis, Washington, D.C., for petitioner. Mr. Donald R. Richberg, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 The respondent Rumely was Secretary of an organization known as the Committee for Constitutional Government, which, among other things, engaged in the sale of books of a particular political tendentiousness. He refused to disclose to the House Select Committee on Lobbying Activities the names of those who made bulk purchases of these books for further distribution, and was convicted under R.S. § 102, as amended, 52 Stat. 942, 2 U.S.C. § 192, 2 U.S.C.A. § 192, which provides penalties for refusal to give testimony or to produce relevant papers 'upon any matter' under congressional inquiry. The Court of Appeals reversed, one judge dissenting. It held that the committee before which Rumely refused to furnish this information had no authority to compel its production. 90 U.S.App.D.C. 382, 197 F.2d 166. Since the Court of Appeals thus took a view of the committee's authority contrary to that adopted by the House in citing Rumely for contempt, we granted certiorari. 344 U.S. 812, 73 S.Ct. 16. This issue—whether the committee was authorized to exact the information which the witness withheld—must first be settled before we may consider whether Congress had the power to confer upon the committee the authority which it claimed. 2 Although we are here dealing with a resolution of the House of Representatives, the problem is much the same as that which confronts the Court when called upon to construe a statute that carries the seeds of constitutional controversy. The potential constitutional questions have farreaching import. We are asked to recognize the penetrating and pervasive scope of the investigative power of Congress. The reach that may be claimed for that power is indicated by Woodrow Wilson's characterization of it: 3 'It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function.' Wilson, Congressional Government, 303. 4 Although the indispensable 'informing function of Congress' is not to be minimized, determination of the 'rights' which this function implies illustrates the common juristic situation thus defined for the Court by Mr. Justice Holmes: 'All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.' Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828. President Wilson did not write in light of the history of events since he wrote; more particularly he did not write of the investigative power of Congress in the context of the First Amendment. And so, we would have to be that 'blind' Court, against which Mr. Chief Justice Taft admonished in a famous passage, Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20, 37, 42 S.Ct. 449, 450, 66 L.Ed. 817, that does not see what '(a)ll others can see and understand' not to know that there is wide concern, both in and out of Congress, over some aspects of the exercise of the congressional power of investigation. 5 Accommodation of these contending principles—the one underlying the power of Congress to investigate, the other at the basis of the limitation imposed by the First Amendment—is not called for until after we have construed the scope of the authority which the House of Representatives gave to the Select Committee on Lobbying Activities. The pertinent portion of the resolution of August 12, 1949, reads: 6 'The Committee is authorized and directed to conduct a study and investigation of (1) all lobbying activities intended to influence, encourage, promote, or retard legislation; and (2) all activities of agencies of the Federal Government intended to influence, encourage, promote, or retard legislation.' H.Res. 298, 81st Cong., 1st Sess. 7 This is the controlling charter of the committee's powers. Its right to exact testimony and to call for the production of documents must be found in this language. The resolution must speak for itself, since Congress put no gloss upon it at the time of its passage. Nor is any help to be had from the fact that the purpose of the Buchanan Committee, as the Select Committee was known, was to try to 'find out how well (the Federal Regulation of Lobbying Act of 1946, 60 Stat. 839, 2 U.S.C.A. § 261 et seq.) worked.' 96 Cong.Rec. 13882. That statute had a section of definitions, but Congress did not define the terms 'lobbying' or 'lobbying activities' in that Act, for it did not use them. Accordingly, the phrase 'lobbying activities' in the resolution must be given the meaning that may fairly be attributed to it, having special regard for the principle of constitutional adjudication which makes it decisive in the choice of fair alternatives that one construction may raise serious constitutional questions avoided by another. In a long series of decisions we have acted on this principle. In the words of Mr. Chief Justice Taft, '(i)t is our duty in the interpretation of federal statutes to reach a conclusion which will avoid serious doubt of their constitutionality.' Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346, 48 S.Ct. 194, 198, 72 L.Ed. 303. Again, what Congress has written, we said through Mr. Chief Justice (then Mr. Justice) Stone, 'must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its validity.' Lucas v. Alexander, 279 U.S. 573, 577, 49 S.Ct. 426, 428, 73 L.Ed. 851. As phrased by Mr. Chief Justice Hughes, 'if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598, and cases cited. 8 Patently, the Court's duty to avoid a constitutional issue, if possible, applies not merely to legislation technically speaking but also to congressional action by way of resolution. See Federal Trade Comm. v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696. Indeed, this duty of not needlessly projecting delicate issues for judicial pronouncement is even more applicable to resolutions than to formal legislation. It can hardly be gainsaid that resolutions secure passage more casually and less responsibly, in the main, than do enactments requiring presidential approval. 9 Surely it cannot be denied that giving the scope to the resolution for which the Government contends, that is, deriving from it the power to inquire into all efforts of private individuals to influence public opinion through books and periodicals, however remote the radiations of influence which they may exert upon the ultimate legislative process, raises doubts of constitutionality in view of the prohibition of the First Amendment. In light of the opinion of Prettyman, J., below and of some of the views expressed here, it would not be seemly to maintain that these doubts are fanciful or factitious. Indeed, adjudication here, if it were necessary, would affect not an evanescent policy of Congress, but its power to inform itself, which underlies its policy-making function. Whenever constitutional limits upon the investigative power of Congress have to be drawn by this Court, it ought only to be done after Congress has demonstrated its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits. Experience admonishes us to tread warily in this domain. The loose language of Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, the weighty criticism to which it has been subjected, see, e.g., Fairman, Mr. Justice Miller and the Supreme Court, 332—334; Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153, the inroads that have been made upon that case by later cases, McGrain v. Daugherty, 273 U.S. 135, 170—171, 47 S.Ct. 319, 327, 71 L.Ed. 580, and Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, strongly counsel abstention from adjudication unless no choice is left. 10 Choice is left. As a matter of English, the phrase 'lobbying activities' readily lends itself to the construction placed upon it below, namely, 'lobbying in its commonly accepted sense,' that is, 'representations made directly to the Congress, its members, or its committees', 90 U.S.App.D.C. 382, 197 F.2d 166, 175, and does not reach what was in Chairman Buchanan's mind, attempts 'to saturate the thinking of the community.' 96 Cong.Rec. 13883. If 'lobbying' was to cover all activities of anyone intending to influence, encourage, promote or retard legislation, why did Congress differentiate between 'lobbying activities' and other 'activities * * * intended to influence'? Had Congress wished to authorize so extensive an investigation of the influences that form public opinion, would it not have used language at least as explicit as it employed in the very resolution in question in authorizing investigation of government agencies? Certainly it does not violence to the phrase 'lobbying activities' to give it a more restricted scope. To give such meaning is not barred by intellectual honesty. So to interpret is in the candid service of avoiding a serious constitutional doubt. 'Words have been strained more than they need to be strained here in order to avoid that doubt.' Mr. Justice Holmes in Blodgett v. Holden, 275 U.S. 142, 148, 276 U.S. 594, 48 S.Ct. 105, 107, 72 L.Ed. 206, with the concurrence of Mr. Justice Brandeis, Mr. Justice Sanford and Mr. Justice Stone. With a view to observing this principle of wisdom and duty, the Court very recently strained words more than they need be strained here. United States v. C.I.O., 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849. The considerations which prevailed in that case should prevail in this. 11 Only a word need be said about the debate in Congress after the committee reported that Rumely had refused to produce the information which he had a right to refuse under the restricted meaning of the phrase 'lobbying activities.' The view taken at that time by the committee and by the Congress that the committee was authorized to ask Rumely for the information he withheld is not legislative history defining the scope of a congressional measure. What was said in the debate on August 30, 1950, after the controversy had arisen regarding the scope of the resolution of August 12, 1949, had the usual infirmity of post litem motam, self-serving declarations.* In any event, Rumely's duty to answer must be judged as of the time of his refusal. The scope of the resolution defining that duty is therefore to be ascertained as of that time and cannot be enlarged by subsequent action of Congress. 12 Grave constitutional questions are matters properly to be decided by this Court but only when they inescapably come before us for adjudication. Until then it is our duty to abstain from marking the boundaries of congressional power or delimiting the protection guaranteed by the First Amendment. Only by such self-restraint will we avoid the mischief which has followed occasional departures from the principles which we profess. 13 The judgment below should be affirmed. 14 Affirmed. 15 Mr. Justice BURTON and Mr. Justice MINTON took no part in the consideration or decision of this case. 16 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, concurring. 17 Respondent was convicted under an indictment charging willful refusal to produce records and give testimony before a Committee of the House of Representatives in violation of R.S. § 102, as amended, 52 Stat. 942, 2 U.S.C. § 192, 2 U.S.C.A. § 192.1 The Committee, known as the Select Committee on Lobbying Activities, was created on August 12, 1949, by House Resolution 2982 which provides in part as follows: 18 'The committee is authorized and directed to conduct at study and investigation of (1) all lobbying activities intended to influence, encourage, promote, or retard legislation; and (2) all activities of agencies of the Federal Government intended to influence, encourage, promote, or retard legislation.' 19 Count one of the indictment charged that respondent willfully refused to produce records, duly subpoenaed, of the Committee for Constitutional Government (CCG), showing the name and address of each person from whom a total of $1,000 or more had been received by CCG from January 1, 1947, to May 1, 1950, for any purpose including receipts from the sale of books and pamphlets. Count six charged a similar offense as to a subpoena calling for the name and address of each person from whom CCG had received between those dates a total of $500 or more for any purpose. Count seven charged a willful refusal to give the name of a woman from Toledo who gave respondent $2,000 for distribution of The Road Ahead, a book written by John T. Flynn. 20 The background of the subpoena and of the questions asked respondent is contained in a report of the Select Committee, H.R.Rep.No.3024, 81st Cong., 2d Sess. It appears that CCG and respondent, its executive, registered under the Regulation of Lobbying Act, 60 Stat. 839, 2 U.S.C. § 261 et seq., 2 U.S.C.A. § 261 et seq., on October 7, 1946. The reports under this registration (which was made under protest) showed that CCG had spent about $2,000,000 from October 1946 to August 1950. The basic function of CCG, according to the Select Committee, was the 'distribution of printed material to influence legislation indirectly.' The Regulation of Lobbying Act requires disclosure of contributions of $500 or more received or expended to influence, directly or indirectly, the passage or defeat of any legislation by the Congress. 2 U.S.C. §§ 264, 266, 2 U.S.C.A. §§ 264, 266. The Select Committee reported that after enactment of the Regulation of Lobbying Act CCG adopted a policy of accepting payments of over $490 only if the contributor specified that the funds be used for the distribution of one or more of its books or pamphlets. It then applied the term 'sale' to the 'contribution' and did not report them under the Regulation of Lobbying Act. H.R.Rep. No.3024, supra, pp. 1, 2. 21 The Report of the Select Committee also shows that while respondent was willing to give the Committee the total income of CCG, he refused to reveal the identity of the purchasers of books and literature because 'under the Bill of Rights, that is beyond the power of your committee to investigate.' Id., p. 8. The books involved were The Road Ahead by John T. Flynn, The Constitution of the United States by Thomas J. Norton, Compulsory Medical Care by Melchior Palyi, and Why the Taft-Hartley Law by Irving B. McCann. Most of the purchasers (about 90 percent) had the books shipped to themselves; the rest told CCG the individuals the send them to or the type of person (e.g., 'farm leaders') who should receive them. One person had CCG send Compulsory Medical Care by Melchior Palyi to 15,550 libraries.3 The Select Committee stated in its report: 22 'Our study of this organization indicates very clearly that its most important function is the distribution of books and pamphlets in order to influence legislation directly and indirectly. It attempts to influence legislation directly by sending copies of books, pamphlets, and other printed materials to Members of Congress. It attempts to influence legislation indirectly by distributing hundreds of thousands of copies of these printed materials to people throughout the United States. 23 'Of particular significance is the fact that Edward A. Rumely and the Committee for Constitutional Government, Inc., in recent years have devised a scheme for raising enormous funds without filing true reports pursuant to the provisions of the Federal Regulation of Lobbying Act. This scheme has the color of legality but in fact is a method of circumventing the law. It utilizes the system outlined above whereby contributions to the Committee for Constitutional Government are designated as payments for the purchase of books, which are transmitted to others at the direction of the purchaser, with both the contributor of the money and the recipients of the books totally unaware of the subterfuge in most cases.' H.R.Rep. No. 3024, supra, p. 2. 24 The Select Committee insisted that the information demanded of respondent was relevant to its investigation of 'lobbying activities' within the meaning of the Resolution. It said: 25 'Because of the refusal of the Committee for Constitutional Government, Inc., to produce pertinent financial records, this committee was unable to determine whether or not the Committee for Constitutional Government, Inc., is evading or violating the letter or the spirit of the Federal Regulation of Lobbying Act by the establishment of a class of contributions called 'Receipts from the sale of books and literature,' or whether they are complying with a law which requires amendments to strengthen it. 26 'The policy of the Committee for Constitutional Government, Inc., of refusing to accept contributions of more than $490 unless earmarked for books, etc., may also involve: (1) Dividing large contributions into installments of $490 or less, and causing the records of the Committee for Constitutional Government to reflect receipt of each installment on a different date, and/or causing the records of the Committee for Constitutional Government to give credit, for the several installments, to various relatives and associates of the actual contributor. (2) Causing the Committee for Constitutional Government's records as to 'Contributions' to reflect less than the total amount of contributions actually received, by labeling some part of such funds as payments made for printed matter. 27 'Because of the refusal of the Committee for Constitutional Government, Inc., to produce pertinent financial records, this committee was unable to determine whether or not the Federal Regulation of Lobbying Act requires amendment to prevent division of large contributions into installments, or to prevent the crediting of contributions to others than the real contributor, or to prevent the use of other subterfuges.' H.R.Rep. No. 3024, supra, pp. 2—3. 28 The Select Committee submitted its report to the House (96 Cong.Rec., p 13873) and offered a Resolution that the Speaker certify respondent's refusal to answer to the United States Attorney for the District of Columbia. Id., p. 13881. The House adopted the Resolution, id., p. 13893, and on August 31, 1950, the Speaker certified respondent's refusal to testify. 29 Respondent was convicted and sentenced to a fine of $1,000 and to imprisonment for six months. The Court of Appeals reversed by a divided vote, 197 F.2d 166, the majority holding that 'lobbying activities' as used in the Resolution creating the Select Committee did not authorize the inquiries made of respondent. In its view the term 'lobbying activities' meant direct contact with Congress, not attempts to influence public opinion through the sale of books and documents. I. 30 The Court holds that Resolution 298 which authorized the Select Committee to investigate 'lobbying activities' did not extend to the inquiry on which this contempt proceeding is based. The difficulty with that position starts with Resolution 298. Its history makes plain that it was intended to probe the sources of support of lobbyists registered under the Regulation of Lobbying Act. Congressman Sabath, one of the sponsors of the Resolution, included CCG in a 'partial list of some of the large lobby organizations and their reports of expenditures for the first quarter of 1949.' See 95 Cong.Rec., p. 11386. The Regulation of Lobbying Act, under which respondent and CCG were registered, applies to all persons soliciting or receiving money to be used principally 'To influence, directly or indirectly, the passage or defeat of any legislation by the Congress of the United States.' 2 U.S.C. § 266(b), 2 U.S.C.A. § 266(b). Congressman Buchanan, who introduced the Resolution and who became Chairman of the Select Committee, said that the purpose of the Resolution was to investigate the operations of that Act.4 Not a word in the Resolution, not a word in the debate preceding its adoption suggests that the inquiry was to be delimited, restricted, or confined to particular methods of collecting money to influence legislation directly or indirectly. 31 The Select Committee took the same broad view of its authority.5 It concluded that 'all substantial attempts to influence legislation for pay or for any consideration constitute lobbying.' H.R.Rep. No. 3239, 81st Cong., 2d Sess., p. 1. It said that 'pamphleteering' was a lobbying activity that overshadows 'the traditional techniques of contact and persuasion.' Id., p. 3. And it cited for its conclusion the activities of CCG. Id. This conclusion was reached over vehement objections by three minority members of the Select Committee who insisted that an investigation of that breadth exceeded the authority of the Resolution and infringed on the constitutional rights of free speech and free press. Id., Part 2, p. 2. 32 This was the posture of the case when the Select Committee referred respondent's refusal to testify to the House for contempt proceedings. Congressman Buchanan called the collection of funds through the sale of books and pamphlets an evasion of the Regulation of Lobbying Act. 96 Cong.Rec. 13882. He pressed on the House the importance of controlling that kind of activity in a regulation of lobbying. And he asked that the House ratify the conclusion of the Select Committee that respondent was in contempt. Id., pp. 13886, 13887. That construction of the Resolution was challenged by Congressman Halleck, a member of the Select Committee who signed the minority report. He argued that the contempt citation sought had 'nothing to do with the influencing of legislation in the ordinary ways of seeing Members of Congress or communicating with them. It has only to do with the formation of public opinion among the people of the country.' Id., p. 13888. Congressman Halleck's argument was two-fold—that the inquiry was not within the purview of the Resolution and that if it were, it would be unconstitutional. Id., pp. 13887—13888. Others took up the debate on those issues. The vote was taken; and the Resolution passed. Id., p. 13893. 33 Thus the House had squarely before it the meaning of its earlier Resolution. A narrower construction than the Select Committee adopted was urged upon it. Congressmen pleaded long and earnestly for the narrow construction and pointed out that, if the broader interpretation were taken, the inquiry would be trenching on the constitutional rights of citizens. I cannot say, in the face of that close consideration of the question by the House itself, that the Select Committee exceeded its authority. The House of Representatives made known its construction of the powers it had granted. If at the beginning there were any doubts as to the meaning of Resolution 298, the House removed them. The Court is repudiating what the House emphatically affirmed, when it now says that the Select Committee lacked the authority to compel respondent to answer the questions propounded. II. 34 Of necessity I come then to the constitutional questions. Respondent represents a segment of the American press. Some may like what his group publishes; others may disapprove. These tracts may be the essence of wisdom to some; to others their point of view and philosophy may be anathema. To some ears their words may be harsh and repulsive; to others they may carry the hope of the future. We have here a publisher who through books and pamphlets seeks to reach the minds and hearts of the American people. He is different in some respects from other publishers. But the differences are minor. Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas. The aim of the historic struggle for a free press was 'to establish and preserve the right of the English people to full information in respect of the doings or misdoings of their government.' Grosjean v. American Press Co., 297 U.S. 233, 247, 56 S.Ct. 444, 448, 80 L.Ed. 660. That is the tradition behind the First Amendment. Censorship or previous restraint is banned. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. Discriminatory taxation is outlawed. Grosjean v. American Press Co., supra. The privilege of pamphleteering, as well as the more orthodox types of publications, may neither be licensed, Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, nor taxed. Murdock v. Com. of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. Door to door distribution is privileged. Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313. These are illustrative of the preferred position granted speech and the press by the First Amendment. The command that 'Congress shall make no law * * * abridging the freedom of speech, or of the press' has behind it a long history. It expresses the confidence that the safety of society depends on the tolerance of government for hostile as well as friendly criticism, that in a community where men's minds are free, there must be room for the unorthodox as well as the orthodox views. 35 If the present inquiry were sanctioned the press would be subjected to harassment that in practical effect might be as serious as censorship. A publisher, compelled to register with the federal government, would be subjected to vexatious inquiries. A requirement that a publisher disclose the identity of those who buy his books, pamphlets, or papers is indeed the beginning of surveillance of the press. True, no legal sanction is involved here. Congress has imposed no tax, established no board of censors, instituted no licensing system. But the potential restraint is equally severe. The finger of government leveled against the press is omnious. Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears. Then the spectre of a government agent will look over the shoulder of everyone who reads. The purchase of a book or pamphlet today may result in a subpoena tomorrow. Fear of criticism goes with every person into the bookstall. The subtle, imponderable pressures of the orthodox lay hold. Some will fear to read what is unpopular what the powers-that-be dislike. When the light of publicity may reach any student, any teacher, inquiry will be discouraged. The books and pamphlets that are critical of the administration, that preach an unpopular policy in domestic or foreign affairs, that are in disrepute in the orthodox school of thought will be suspect and subject to investigation. The press and its readers will pay a heavy price in harassment. But that will be minor in comparison with the menace of the shadow which government will cast over literature that does not follow the dominant party line. If the lady from Toledo can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, bookstores, and homes of the land. Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press. Congress could not do this by law. The power of investigation is also limited.6 Inquiry into personal and private affairs is precluded. See Kilbourn v. Thompson, 103 U.S. 168, 190, 26 L.Ed. 377; McGrain v. Daugherty, 273 U.S. 135, 173—174, 47 S.Ct. 319, 328, 71 L.Ed. 580; Sinclair v. United States, 279 U.S. 263, 292, 49 S.Ct. 268, 271, 73 L.Ed. 692. And so is any matter in respect to which no valid legislation could be had. Kilbourn v. Thompson, supra, 103 U.S. at pages 194—195, 26 L.Ed. 377; McGrain v. Daugherty, supra, 273 U.S. at page 171, 47 S.Ct. at page 327. Since Congress could not by law require of respondent what the House demanded, it may not take the first step in an inquiry ending in fine or imprisonment. * The ambiguity of the terms of the resolution—that is, whether questions asked to which answers were refused were within those terms—is reflected by the close division by which the committee's view of its own authority prevailed. The vote was 183 to 175. 1 This section provides in pertinent part: 'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, * * * or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common fail for not less than one month nor more than twelve months.' 2 H.Res. 298, 81st Cong., 1st Sess. 3 When the Taft-Hartley law was under discussion, CCG published a pamphlet 'Labor Monopolies or Freedom' of which 250,000 copies were distributed. 'All members of Congress got a copy. It went to publishers. People who could take opinion that way, and mint it into small coin to distribute to others.' H.R.Rep.No.3024, supra, p. 11. Respondent testified that Frank Gannett paid for that distribution. 4 'Pressure groups interpret the Lobbying Act in different ways. Some file expenses. Others file full budget, but list expenditures they judge allocable to legislative activities. Still others file only expenditures directly concerned with lobbying. 'Some organizations argue they need not file unless principal purpose is influencing legislation. But Justice Department says, 'principal' includes all who have substantial legislative interests. Lobbies also differ on who filed expenditures organizations or individuals.' 95 Cong.Rec. 11389. 5 An analysis of the scope of the investigation and the meaning of 'lobbying' is contained in the General Interim Report of the Select Committee. H.R.Rep. No. 3138, 81st Cong., 2d Sess., pp. 5 et seq. 6 Cf. Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied, 334 U.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767, rehearing denied 339 U.S. 971, 70 S.Ct. 1001, 94 L.Ed. 1379, and Marshall v. United States, 85 U.S.App.D.C. 184, 176 F.2d 473, certiorari denied, 339 U.S. 933, 70 S.Ct. 663, 94 L.Ed. 1352, rehearing denied 339 U.S. 959, 70 S.Ct. 976, 94 L.Ed. 1369.
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345 U.S. 13 73 S.Ct. 565 97 L.Ed. 745 ALSTATE CONST. CO.v.DURKIN, Secretary of United States Department of Labor. No. 296. Argued Feb. 2, 3, 1953. Decided March 9, 1953. Mr. S. A. Schreckengaust, Jr., Harrisburg, Pa., for petitioner. Miss Bessie Margolin, Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 Section 7(a) of the Fair Labor Standards Act requires employers to pay each employee covered by the Act not less than one and one-half times his regular pay rate for every hour worked in excess of a forty-hour week; § 11(c) requires employers to keep appropriate employment records.1 Employees covered are defined as those 'engaged in commerce or in the production of goods for commerce'. We have held that employees repairing interstate roads or railroads are 'engaged in commerce' within the meaning of that clause of § 7(a).2 The question presented in this case is whether employees who work off such roads in the production of materials to repair them are engaged 'in the production of goods for commerce' within the meaning of § 7(a). 2 The Wage and Hour Administrator sued in District Court to enjoin the petitioner Alstate Construction Company from violating the overtime and record-keeping provisions of the Act. The District Court found: Alstate is a Pennsylvania road contractor that reconstructs and repairs roads, railroads, parkways and like facilities in that state. The company also manufactures at three Pennsylvania plants a bituminous concrete road surfacing mixture called amesite made from materials either bought or quarried in Pennsylvania. Most of it is applied to Pennsylvania roads either by Alstate's own employees or by Alstate's customers. Eighty-five and one-half percent of Alstate's work here involved was done on interstate roads, railroads, or for Pennsylvania companies producing goods for interstate commerce, and 14 1/2% was done on projects that did not relate to interstate commerce. Alstate made no attempt to segregate payments to its employees on the basis of whether their work involved interstate or intrastate activities. 3 The District Court held that all of Alstate's employees were covered by the Act and granted the injunction prayed. 95 F.Supp. 585. The Court of Appeals for the Third Circuit affirmed, holding that those employees of Alstate who worked on roads were 'in commerce,' and that its 'off-the-road' plant employees were producing road materials 'for commerce.' 195 F.2d 577. On similar facts, the Court of Appeals for the Eighth Circuit applied the Act to 'off-the-road' employees. Tobin v. Johnson, 198 F.2d 130. An opposite result was reached by the Tenth Circuit in E. C. Schroeder v. Clifton, 153 F.2d 385, and the Supreme Court of Pennsylvania in Thomas v. Hempt Bros., 371 Pa. 383, 89 A.2d 776. To settle this question we granted certiorari in this and the Hempt Bros. case. 344 U.S. 895, 73 S.Ct. 276. 4 Amesite is produced in Pennsylvania for use on Pennsylvania roads. None of it is manufactured with a purpose to ship it across state lines. For this reason, so Alstate contends, amesite is not produced 'for commerce.' Obviously, acceptance of this contention would require us to read 'production of goods for commerce' as though written 'production of goods for transportation in commerce'—that is, across state lines. Such limiting language did appear in the bill as it passed the Senate,3 but Congress left it out of the Act as passed. Of course production of 'goods' for the purpose of shipping them across state lines is production 'for commerce.' But we could not hold—consistently with Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656, and Pedersen v. Fitzgerald Construction Co., 318 U.S. 740, 742, 63 S.Ct. 558, 87 L.Ed. 1119—that the only way to produce goods 'for commerce' is to produce them for transportation across state lines. 5 In the Overstreet and Pedersen cases, supra, we had to decide whether employees engaged in repairing interstate roads and railroads were 'in commerce.' In Overstreet we pointed out that interstate roads and railroads are indispensable 'instrumentalities' in the carriage of persons and goods that move in interstate commerce. We then held that because roads and railroads are in law and in fact integrated and indispensable parts of our system of commerce among the states, employees repairing them are 'in commerce.' Consequently he who serves interstate highways and railroads serves commerce. By the same token he who produces goods for these indispensable and inseparable parts of commerce produces goods for commerce. We therefore conclude that Alstate's off-the-road employees were covered by the Act because engaged in 'production of goods for commerce'. 6 It is contended that we should not construe the Act as covering the 'off-the-road' employees because it was given a contrary interpretation by its administrators from 1938 until 1945. During these first years after the Act's passage the administrator did take such a position. But more experience with the Act together with judicial construction of its scope4 convinced its administrators that the first interpretation was unjustifiably narrow. He therefore publicly announced that off-the-road employees like these were protected by the Act. The new interpretation was reported to congressional committees on a number of occasions. Interested employers severely criticized the administrator's changes. Specific amendments were urged to neutralize his interpretation. Such neutralizing amendments were suggested to congressional committees by the National Sand and Gravel Association which has filed a brief before us as amicus curiae.5 Instead of adopting any of the suggestions to undermine the administrator's interpretation, Congress in a 1949 amendment to the Fair Labor Standards Act provided that all past orders, regulations and interpretations of the administrator should remain in effect 'except to the extent that any such order, regulation, interpretation, * * * may be inconsistent with the provisions of this Act, or may from time to time be amended, modified, or rescinded by the Administrator * * *.'6 7 We decline to repudiate an administrative interpretation of the Act which Congress refused to repudiate after being repeatedly urged to do so. 8 There is an objection to the scope of the injunction, but we are satisfied with the Court of Appeals' treatment of this contention. 9 Affirmed. 10 Mr. Justice DOUGLAS, with whom Mr. Justice FRANKFURTER concurs, dissenting. 11 The Court reasons that if the man who is building or repairing an interstate highway is 'engaged in commerce', the one who carries cement and gravel to him from a nearby pit is 'engaged * * * in the production of goods for commerce'. Yet if that is true, how about the men who produce the tools for those who carry the cement and gravel or those who furnish the materials to make the tools used in producing the cement and gravel? Each would be essential to the highway worker 'engaged in commerce'. Yet the circle gets amazingly large once we say that 'the production of goods for commerce' includes the 'production of goods for those engaged in commerce.' Cf. McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538. 12 A person who is maintaining or repairing interstate transportation facilities is 'engaged in commerce'. Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 496, 87 L.Ed. 656. A person who is creating articles destined for the channels of interstate commerce and all others who have such a close and immediate connection with the process as to be an essential or necessary part of it are engaged in 'the production of goods for commerce'. See Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 1120, 86 L.Ed. 1638. If those who serve those 'engaged in commerce' are also included, a large measure of cases affecting commerce are brought into the Act. Yet the history of the Act shows that no such extension of the federal domain was intended. See Kirschbaum Co. v. Walling, supra, 316 U.S. at pages 522—523, 62 S.Ct. at pages 1119—1120. If those whose activities are necessary or essential to support those who are 'engaged in commerce' are to be brought under the Act, I think an amendment of the Act would be necessary. 1 52 Stat. 1060, as amended, 63 Stat. 910, 912—913, 29 U.S.C. §§ 207(a), 211(c), 29 U.S.C.A. §§ 207(a), 211(c). 2 Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656; Pedersen v. J. F. Fitzgerald Construction Co., 318 U.S. 740, 742, 63 S.Ct. 558, 87 L.Ed. 1119, reversing 288 N.Y. 687, 43 N.E.2d 83, on the authority of Overstreet v. North Shore Corp., supra. 3 81 Cong.Rec. 7957. 4 Fleming v. Atlantic Co., D.C., 40 F.Supp. 654, affirmed sub nom. Atlantic Co. v. Walling, 5 Cir., 131 F.2d 518; Lewis v. Florida Power & Light Co., 154 F.2d 751; Southern United Ice Co. v. Hendrix, 5 Cir., 153 F.2d 689; Chapman v. Home Ice Co., 6 Cir., 136 F.2d 353. 5 See for illustration Hearings before Subcommittee No. 4 of House Committee on Education and Labor on H.R. 40, 80th Cong., 1st Sess. 1374—1375. 6 63 Stat. 910, 920, 29 U.S.C.A. § 208 note.
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345 U.S. 83 73 S.Ct. 534 97 L.Ed. 842 ORLOFFv.WILLOUGHBY, Commandant of Fort Lawton, Seattle, Wash. No. 444. Argued Jan. 13, 1953. Decided March 9, 1953. Rehearing Denied April 6, 1953. See 345 U.S. 931, 73 S.Ct. 779. Messrs. David Rein, Washington, D.C., Stanley Faulkner, New York City, for petitioner. Mr. Robert S. Erdahl, Washington, D.C., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 Petitioner presents a novel case. Admitting that he was lawfully inducted into the Army, he asks the courts, by habeas corpus, to discharge him because he has not been assigned to the specialized duties nor given the commissioned rank to which he claims to be entitled by the circumstances of his induction. The petitioner had passed the ages liable to induction except under the Universal Military Training and Service Act, 50 U.S.C.App. § 454(i)(1)(A), 50 U.S.C.A.Appendix, § 454(i)(1)(A), which authorizes conscription of certain 'medical and allied specialist categories'. The statute sets up a priority system for calling such specialists, the first liable being those who received professional training at government expense during World War II and who have served less than ninety days since completion of such training. As a doctor who had received training under this program, Orloff was subject to this provision and was called up pursuant to it. 2 His petition alleged that he was illegally restrained of his liberty because he was liable for service only as a doctor but, after induction, had been given neither rank nor duties appropriate to that profession and so was entitled to be discharged. He alleged that under Army regulations and practice one can serve as a doctor only as a commissioned officer and that he applied for but had not received such an appointment. He also alleged that he had requested assignment of physician's duties, with or without a commission, but that this also had been denied him. 3 The return to the order to show cause asserted that Orloff was lawfully inducted and therefore the court is without jurisdiction of the subject matter. An affidavit by Colonel Willoughby set forth that the petitioner, after sixteen weeks of army medical service training following his induction, was awarded a 'potential military occupation specialty' as a medical laboratory technician. Appointment as an officer in the Army Medical Corps Reserve, he said, was still under consideration. It also asserted that under his induction he was liable for training and service under military jurisdiction and was subject to military orders and service the same as any other inducted person. 4 Answering the petition for habeas corpus, the respondent raised as affirmative defenses that petitioner was subject to military command and that both the subject matter and the person of the petitioner were under the exclusive jurisdiction of the President of the United States as Commander in Chief of the Armed Forces, and that petitioner had failed to exhaust his administrative remedies. Respondent further stated that his application for a commission still was being processed by military authorities 'because of particular statements made by petitioner in his application concerning prior membership or association with certain organizations designated by the Attorney General of the United States on October 30, 1950 pursuant to Executive Order 9835 (5 U.S.C.A. § 631 note),' that the court was without jurisdiction, and that habeas corpus does not lie for the purpose of the case. 5 By way of traverse, Orloff set forth in detail his qualifications as a physician and psychiatrist and alleged that the medical laboratory technician status was not a doctor's work and required no more than a four-month training of a layman in the medical field service school. This, he claims, is not within the medical specialist category for which he was conscripted. He asserted that he was willing to serve as a medical specialist, that is, as a medical doctor, and had offered his services as a doctor in the grade or rank of private but had been advised that he could serve as a doctor only upon being commissioned. 6 Upon such pleadings the cause proceeded to hearing. Petitioner's counsel told the trial court that no question was involved as to the Army's granting or not granting a commission and that petitioner was not asking anybody to give anybody else a commission, but he claimed to be entitled to discharge until the Army was prepared to use his services as a doctor. It was admitted that petitioner had made no request of respondent for a discharge. Evidence was taken indicating that the specialty to which Orloff had been assigned was not that usual for a physician. The trial judge concluded that the law does not require a person drafted under the 'medical and allied specialist categories' to be assigned doctor's functions and those only, and interpreted the law that a doctor inducted under the statute was in the same status, so far as his obedience to orders is concerned, as if he had been inducted under other conscription statutes and could not insist on being used in the medical category. He therefore denied the writ. D.C., 104 F.Supp. 14. 7 On appeal, as the Court of Appeals pointed out, the case was argued and briefed by the Government on the broad theory that under the statute doctors could be drafted and used for any purpose the Army saw fit, that duty assignment for such inductees was a matter of military discretion. The court agreed and on that ground affirmed.1 8 We granted certiorari,2 and in this Court the parties changed positions as nimbly as if dancing a quadrille. The Government here admits that the petitioner is entitled to duties generally within a doctor's field and says that he now has been assigned to such. The petitioner denies that he yet has duties that fully satisfy that requirement. Notwithstanding his position before the trial court, he further says that anyway he must be commissioned and wants this Court to order him commissioned or discharged. 9 In its present posture, questions presented are, first, whether to accept the Government's concession that one inducted as a medical specialist must be used as such; second, whether petitioner, as matter of law, is entitled to a commission; third, whether the federal courts, by habeas corpus, have power to discharge a lawfully mustered member of the Armed Forces because of alleged discriminatory or illegal treatment in assignment of duties. 10 1. This Court, of course, is not bound to accept the Government's concession that the courts below erred on a question of law. They accepted the Government's argument as then made and, if they were right in doing so, we should affirm. We think, however, that the Government is well advised in confessing error and that candid reversal of its position is commendable. We understand that the Army accepts and is governing itself by the Government's present interpretation of its duty toward those conscripted because of professional skills. To separate particular professional groups from the generality of the citizenship and render them liable to military service only because of their expert callings and, after induction, to divert them form the class of work for which they were conscripted would raise questions not only of bad faith but of unlawful discrimination. We agree that the statute should be interpreted to obligate the Army to classify specially inducted professional personnel for duty within the categories which rendered them liable to induction. It is not conceded, however, that particular duty orders within the general field are subject to judicial review by habeas corpus. 11 2. We cannot comply with the appellant's insistence that we order him to be commissioned or discharged. We assume that he is correct in stating that it has been a uniform practice to commission Army doctors; indeed, until 1950 Congress provided that the Army Medical Corps should consist of '* * * commissioned officers below the grade of brigadier general.' 10 U.S.C. § 91, 10 U.S.C.A. § 91. But in 1950 Congress repealed § 91 and substituted in its place the following language: '(The Medical Corps) * * * shall consist of Regular Army officers appointed and commissioned therein and such other members of the Army as may be assigned thereto by the Secretary of the Army * * *.' 10 U.S.C. § 81—1, 10 U.S.C.A. § 81—1. 10 U.S.C. § 94, 10 U.S.C.A. § 94, provides that medical officers of the Army may be assigned by the Secretary of the Army to such duties as the interests of the service demand. Thus, neither in the language of the Universal Military Training and Service Act nor of the Army Reorganization Act referred to above is there any implication that all personnel inducted under the Doctor's Draft Act and assigned to the Medical Corps be either commissioned or discharged. 12 Petitioner, by his concessions on the hearing to the effect that the question of a commission was not involved, may have avoided a full litigation of the facts which lie back of his noncommissioned status, but enough appears to make plain that there was cause for refusing him a commission. 13 It appears that just before petitioner was inducted he applied for and was granted a commission as captain in the Medical Corps, United States Air Force Reserve. When he refused to execute the loyalty certificate prescribed for commissioned officers, his appointment was revoked and he was discharged. This petitioner refused information as to his membership in or association with organizations designated by the Attorney General as subversive or which advocated overthrow of the Government by force and violence. He gave as his reason that 'as a matter of conscience, I object to filling out the loyalty certificate because it involves an inquisition into my personal beliefs and views. Moreover, the inquiry into organizational affiliations employs the principle of guilt by association, to which I am vigorously opposed. Further, it is my understanding that all the organizations were listed by the Attorney General without notice or hearing which has caused the Supreme Court to invalidate it.' 14 After he was inducted, petitioner applied for another commission and filed the required loyalty certificate but again refused to supply the requested information. He stated, 'I have attended public meetings of the Civil Rights Congress and the National Council of American-Soviet Friendship. In 1943, I co-authored a radio play for the latter organization. Over a period of 7 1/2 months I attended classes at the Jefferson School of Social Sciences (ending in the Spring of 1950). With respect to any other organizations contained on the annexed list I am compelled to claim my Federal Constitutional Privilege. However, I have never considered myself an organizational member of any of the aforesaid.' As to the question 'Are you now or have you ever been a member of the Communist Party, U.S.A. or any Communist Organization?' he said, 'Federal constitutional privilege is claimed.' 15 The petitioner appears to be under the misconception that a commission is not only a matter of right, but is to be had upon his own terms. 16 The President commissions all Army officers. 5 U.S.C. § 11, 5 U.S.C.A. § 11. We have held that, except one hold his appointment by virtue of a commission from the President, he is not an Officer of the Army. United States v. Mouat, 124 U.S. 303, 8 S.Ct. 505, 31 L.Ed. 463. Congress has authorized the President alone to appoint Army officers in grades up to and including that of colonel, above which the advice and consent of the Senate is required. 55 Stat. 728, as amended, 57 Stat. 380, 10 U.S.C.A. § 506d note. 17 It is obvious that the commissioning of officers in the Army is a matter of discretion within the province of the President as Commander in Chief. Whatever control courts have exerted over tenure or compensation under an appointment, they have never assumed by any process to control the appointing power either in civilian or military positions. 18 Petitioner, like every conscript, was inducted as a private. To obtain a change of that status requires appointment by or under authority of the President. It is true that the appointment he seeks is one that long and consistent practice seems never to have denied to one serving as an Army doctor; one, too, that Congress in authorizing the draft of doctors probably contemplated normally would be forthcoming. But, if he is the first to be denied a commission, it may also be that he is the first doctor to haggle about questions concerning his loyalty. It does not appear to us that it is the President who breaks faith with Congress and the doctors of America. We are not easily convinced that the whole military establishment is out of step except Orloff. 19 The President's commission to Army officers recites that 'reposing special trust and confidence in the patriotism, valor, fidelity and abilities' of the appointee he is named to the specified rank during the pleasure of the President. Could this Court, whatever power it might have in the matter, rationally hold that the President must, or even ought to, issue the certificate to one who will not answer whether he is a member of the Communist Party? 20 It is argued that Orloff is being punished for having claimed a privilege which the Constitution guarantees. No one, at least no one on this Court which has repeatedly sustained assertion by Communists of the privilege against self-incrimination, questions or doubts Orloff's right to withhold facts about himself on this ground. No one believes he can be punished for doing so. But the question is whether he can at the same time take the position that to tell the truth about himself might incriminate him and that even so the President must appoint him to a post of honor and trust. We have no hesitation in answering that question 'No.' 21 It is not our view of Orloff's fitness that governs. Regardless of what we individually may think of the usefulness of loyalty oaths or the validity of the Attorney General's list of subversive organizations, we cannot doubt that the President of the United States, before certifying his confidence in an officer and appointing him to a commissioned rank, has the right to learn whatever facts the President thinks may affect his fitness. Perhaps we would not ask some of these questions, or we might ask others, but if there had never been an Attorney General's list the President would be within his rights in asking any questions he saw fit about the habits, associations and attitudes of the applicant for his trust and honor. Whether Orloff deserves appointment is not for judges to say and it would be idle, or worse, to remand this case to the lower courts on any question concerning his claim to a commission. 22 3. This leaves the question as to whether one lawfully inducted may have habeas corpus to obtain a judicial review of his assignments to duty. The Government has conceded that it was the legal duty of the Army to assign Orloff to duties falling within 'medical and allied specialist categories.' However, within the area covered by this concession there are many varieties of particular duties. The classification to which petitioner belonged for inductive purposes was defined by statute to be 'medical and allied specialist categories.' This class includes not merely doctors and psychiatrists but other medical technicians, and, while the duties must be within this category, a large area of discretion as to particular duties must be left to commanding officers. The petitioner obtained basic medical education at the expense of the Government. In private life he has pursued a specialty. But the very essence of compulsory service is the subordination of the desires and interests of the individual to the needs of the service. A conscripted doctor may have pursued the specialty of obstetrics, but in the Army, which might have limited use for his specialty, could he refuse other service within the general medical category? 23 Each doctor in the Army cannot be entitled to choose his own duties, and the Government concession does not extend to an admission that duties cannot be prescribed by the military authorities or that they are subject to review and determination by the judiciary. 24 The nature of this issue is pointed up by the controversy that survives the changes the parties have made in their positions in this Court. It is admitted that Orloff is now assigned to medical duties in the treatment of patients within the psychiatric field. He is not allowed functions that pertain to commissioned officers, but, apart from that, he is restricted from administering certain drugs and treatments said to induce or facilitate a state of hypnotism. Orloff claims this as is professional prerogative, because in private practice he would be free to administer such treatments. The Government says, however, that because of doubts about his loyalty he is not allowed to administer such drugs since his patients may be officers in possession of important military information which he could draw out from them while they were under the influence of the drugs. Of course, if it were the function or duty of the judiciary to resolve such a controversy, this case should be returned to the District Court to take evidence as to all issues involved. 25 However, we are convinced that it is not within the power of this Court by habeas corpus to determine whether specific assignments to duty fall within the basic classification of petitioner. It is surely not necessary that one physician be permitted to cover the whole field within the medical classification, nor would we expect that a physician is exempt from occasional or incidental duties not strictly medical. In these there must be a wide latitude allowed to those in command. 26 We know that from top to bottom of the Army the complaint is often made, and sometimes with justification, that there is discrimination, favoritism or other objectionable handling of men. But judges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. While the courts have found occasion to determine whether one has been lawfully inducted and is therefore within the jurisdiction of the Army and subject to its orders, we have found no case where this Court has assumed to revise duty orders as to one lawfully in the service. 27 But the proceeding being in habeas corpus, petitioner urges that, if we may not order him commissioned or his duties redefined, we may hold that in default of granting his requests he may be discharged from the Army. Nothing appears to convince us that he is held in the Army unlawfully, and, that being the case, we cannot go into the discriminatory character of his orders. Discrimination is unavoidable in the Army. Some must be assigned to dangerous missions; others find soft spots. Courts are presumably under as great a duty to entertain the complaints of any of the thousands of soldiers as we are to entertain those of Orloff. The effect of entertaining a proceeding for judicial discharge from the Army is shown from this case. Orloff was ordered sent to the Far East Command, where the United States is now engaged in combat. By reason of these proceedings, he has remained in the United States and successfully avoided foreign service until his period of induction is almost past. Presumably, some doctor willing to tell whether he was a member of the Communist Party has been required to go to the Far East in his place. It is not difficult to see that the exercise of such jurisdiction as is here urged would be a disruptive force as to affairs peculiarly within the jurisdiction of the military authorities. 28 We see nothing to be accomplished by returning this case for further litigation. The judgment is affirmed. 29 Affirmed. 30 Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS concur, dissenting. 31 I agree with Mr. Justice FRANKFURTER'S dissent. 32 The United States confesses error in this case and then tells us that since the District Court rendered its erroneous judgment Dr. Orloff has been assigned to some duties that fall within the range of medical activities. This is denied by Dr. Orloff. Apparently admitting that Orloff could not be retained in the Army to do something other than the performance of medical services, the Court nevertheless refuses to send the case back to have this factual controversy determined by the District Court. This Court is usually exceedingly reluctant to resolve disputed facts. I cannot understand why it feels called on to affirm this admittedly erroneous judgment by deciding disputed facts on mere unsworn statements of parties here. And there are other reasons why I think the case should be reversed. 33 I believe the United States was right when it stipulated in the District Court that it could not lawfully utilize Orloff's services as a physician without giving him a commission. It is true the United States has here backed away from this stipulation. It now claims a right to utilize Orloff as a doctor without granting him a commission and this Court agrees. I do not agree. 34 Since 1847, one hundred and six years ago, Army doctors have served only when they have been commissioned to do so as officers.* This long-standing Army practice is in harmony with the law as it exists today. 10 U.S.C. (Supp. IV) § 81 1 and § 91a, 10 U.S.C.A. §§ 81—1, 91a. The congressional hearings and discussions of the special draft act under which Dr. Orloff was inducted indicate that the law probably never would have been passed but for repeated assurances given the Congress that all doctors drafted and held for service under it would be granted commissions. This, because the law was admitted by its sponsors to be 'discriminatory legislation,' singling out the medical profession and its allies, and providing for their induction up to 50 years of age, although other people of this age group could not be called into Army service. This discrimination was justified to Congress only on the ground that doctors made to serve under that law would be given at least a first lieutenant's grade in accordance with the century-old practice of the Army. 96 Cong.Rec. 13861. I think the Government breaks faith with the Congress and with the doctors of America in drafting a doctor without granting him a commission. 35 It is difficult to think of any sound reason why the Army claims power to use this doctor while denying him the privileges of all other Army doctors. He will be the only doctor denied a commission out of 3,989 doctors drafted under the special law up to last October. And if there was any genuine question about his loyalty to our country, it seems unthinkable that any responsible person in the armed forces would be willing to let him have any part in the treatment of sick and wounded soldiers. If therefore Dr. Orloff is being used as a doctor, the Army must believe that he is dependable despite his failure to answer the question about his past associations. If he is being used, the law entitles him to a commission. 36 This record indicates to me, however, that Dr. Orloff is being held in the Army not to be used as a medical practitioner, but to be treated as a kind of parish in order to punish him for having claimed a privilege which the Constitution guarantees. Doubtless there are some who would make it a crime for a person to claim this privilege. If an attempt is to be made to punish draftees for asserting constitutional claims, as I can hardly believe it would, it should be done only by an act of Congress. Should such be attempted I would hope that this Court would promptly declare an act to that effect unconstitutional. And if some kind of punishment is to be imposed for asserting constitutional rights, it should not be imposed without a trial according to due process of law. 37 I think it only fair to state that I see nothing in this record from which the slightest inference should be drawn that Dr. Orloff has taken the course he did in order to avoid service in the Army here or abroad. 38 This whole episode appears to me to be one of a too-rapidly increasing number to which Americans in a calmer future are not likely to point with much pride. 39 Mr. Justice FRANKFURTER, whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting. 40 Of course the commissioning of officers in the Army lies entirely within the President's discretion and is not subject to judicial control. Although there can be no doubt about that, it does not follow that Congress is precluded from drafting a special group into the Army on condition that they will be commissioned. Receiving a commission is clearly not a matter of right; but granting it may be a condition for retaining a person in the Army. The commissioning of officers in the Army is, no doubt, a matter of discretion within the province of the President as Commander in Chief. But whether we can or cannot hold the President's lawful exercise of his discretion to be a ground for discharge of one he fails to commission depends on the conditions under which Congress authorized him to be drafted. 41 And so for me the central question in this case is whether one who is drafted under the doctors draft statute, 64 Stat. 826, 50 U.S.C.App. (Supp. IV) § 454(i)(1), 50 U.S.C.A.Appendix, § 454(i)(1), but who does not, in due course, obtain a commission, of whatever rank, must, as a matter of statutory construction, be discharged from the Army because Congress imposed the condition of such a commission on drafting doctors above the general draft age and the condition has not been fulfilled. That view would be strongly supported by the admission of the Government in the trial court that the 'regulations and practice of the United States Army provide that an individual can serve as a doctor of medicine in the United States Army only if he holds a rank of a commissioned officer.'* Further, if the statements that were made at the hearings and on the floor of the Congress by those who were in charge of the legislation had been made in a formal committee report, this Court could hardly have held that the receipt of a commission was not a condition on keeping in the Army a doctor drafted under these special provisions. Whatever we may think about the loose use of legislative history, it has never been questioned that reports of committees and utterances of those in charge of legislation constitute authoritative exposition of the meaning of legislation. It is hard to believe that the powerful American Medical Association would have failed to oppose vigorously any provisions under which the Army could draft doctors not otherwise draftable as noncommissioned personnel or that the Congress would have adopted any such provision in the face of professional opposition. 42 An independent investigation of all the relevant factors bearing on the legislation, beyond what was brought to our attention, see Hearings before House Committee on Armed Services on H.R. 9554, 81st Cong., 2d Sess. 7164, 7166—7167, 7189, 7223; 96 Cong.Rec. 13861, would be necessary to enable one to be confident in rejecting the contention that doctors who were drafted were to obtain a commission. I do not mean to say that mandamus would lie to compel the grant of a commission. That is not the only alternative. The obvious tertium quid is the release of a doctor-draftee who is found unfit for a commission. On the basis of what has been put before us I do not see how we can dispose of the case with complete indifference to this crucial issue. This seems to me the more inadmissible in view of the shifting arguments of the Government, as it has been driven from position to position. Only in its purpose to keep this man in the Army has the Government been undeviating. He could not be drafted under the general draft law; and if a pledge was given to the medical profession, as apparently it was, that a special class of drafted doctors would be duly commissioned, Orloff ought not to be retained in disregard of that pledge. In that case, it is immaterial what quirky notions petitioner may have as to the reasons why a commission has been withheld from him. 1 9 Cir., 195 F.2d 209. 2 344 U.S. 873, 73 S.Ct. 175. * The Government admits that such has been the practice since the Act of February 11, 1847, 9 Stat. 123, 124—125. * Compare Petition for Writ of Habeas Corpus, par. 7, T.R. 2, with Answer to Petition for Writ of Habeas Corpus, par. 7, T.R. 8 9; see T.R. 23—24.
12
345 U.S. 71 73 S.Ct. 519 97 L.Ed. 832 NATIONAL LABOR RELATIONS BOARDv.ROCKAWAY NEWS SUPPLY CO., Inc. No. 318. Argued Jan. 14, 1953. Decided March 9, 1953. Mr. Frederick U. Reel, Washington, D.C., for petitioner. Mr. julius Kass, New York City, for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 The Court of Appeals has set aside the National Labor Relations Board's order that Rockaway News Supply Co. reinstate one Charles Waugh as a chauffeur and routeman and make him whole for an unlawful discharge. The court below was divided,1 and we granted certiorari.2 2 Waugh had been employed by respondent about seven years. His duty was to drive a truck along a regular route to pick up and deliver certain newspapers and other publications. One of his scheduled stops was at the Rockville Center plant of The Daily Review Corporation, publisher of the Nassau Daily Review, consignments of which he was to pick up and deliver to various retail dealers. Waugh, like all others similarly employed by respondent, was a member of the Newspaper and Mail Deliverers' Union of New York and Vicinity. For some years respondent had recognized this union as the exclusive bargaining representative of its employees, without the formality of an election. It had an employment contract bargained with this union which contained a union-security clause not conditioned upon a vote of the employees under § 9(e) of the Labor Management Relations Act, 29 U.S.C.A. § 159(e), an omission which raised questions as to the validity of the clause and of the contract as a whole. 3 The Nassau County Typographical Union No. 915, A.F.L., of which Waugh was not a member, established a picket line about the premises of The Daily Review Corporation which, on March 2, 1950, prevented a pickup of its newspaper except by passing through the picket line. Waugh assured himself that the line was ordered by the Typographical Union in connection with a labor dispute. He then informed his foreman that, because he was himself a union man, he would not cross the picket line of another union. He was advised not to take that attitude and was told 'It might mean your job.' Waugh insisted that he would not do harm to another union and asked to have the papers somehow delivered to him outside of the picket line. This was done for two days, but the following day he was ordered to cross the line and get the papers—'Otherwise you are fired; if you refuse, you are fired.' Waugh left the premises but returned daily for three weeks seeking re-employment which was refused. Waugh had been willing to perform all duties provided he was not required personally to cross the picket line. 4 The other drivers were also members of the same union as Waugh, but only he refused to cross the line. Waugh's union had a collectively bargained contract with respondent which provided against strikes, lockouts, other cessation of work or interference therewith except as against a party failing to comply with a decision, award, or order of the Adjustment Board for which it provided. The union initiated an arbitration thereunder and the Adjustment Board, on March 31, 1950, made an award in favor of respondent.3 Waugh then filed the charge of unfair labor practice and the General Counsel initiated these proceedings. 5 The parties here see the case as requiring decision of sweeping abstract principles as to the respective rights of employer and employee regarding picket lines. But this decision does not, and should not be read to, declare any such principles. The actual controversy here is within a very narrow scope, so narrow that the Board in its opinion said: 6 'Although Waugh's refusal to cross the picket line was a protected activity, the Respondent, as a normal incident of its right to maintain its operations, could have required Waugh to elect whether to perform all his duties or, as a striker, to vacate his job and make way for his replacement by the Respondent. Instead the Respondent discharged Waugh.' 7 The Court of Appeals said (197 F.2d 114), 'We cannot follow the Board's reasoning.' Nor can we. The distinction between discharge and replacement in this context seems to us as unrealistic and unfounded in law as the Court of Appeals found it. This application of the distinction is not sanctioned by National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347, 58 S.Ct. 904, 911, 82 L.Ed. 1381. It is not based on any difference in effect upon the employee. And there is no finding that he was not replaced either by a new employee or by transfer of duties to some nonobjecting employee, as would appear necessary if the respondent were to maintain the operation. Substantive rights and duties in the field of labor-management do not depend on verbal ritual reminiscent of medieval real property law. 8 In this case there is no finding, evidence or even charge that the dismissal of Waugh resulted from antiunion bias, or was intended to or did discriminate against him to discourage membership in a labor organization. Waugh's refusal to cross the line was not in obedience to any action by his union. Even Waugh was willing to have the picket line breached, so long as it was done by others. No other member of his own union joined him. He held his position under his union's collectively bargained contract, the adjustment processes of which went against him. It is ironical that respondent has been denied the result of the arbitration by the Board solely because the respondent, by the contract, conceded too much to union security, allowing the union what the Taft-Hartley Act does not permit. If respondent pursued any wrong course in dealing with Waugh, it evidently was not due to hostility to labor organizations. 9 The Board, apparently conceding that, if valid, the contract between the union and respondent would establish the latter's defense against the charge of unfair labor practice, held the contract utterly null and void and denied it any effect whatever in this case. Also, in a proceeding decided June 5, 1951, the Board declared the contract to be illegal in its entirety and set it aside. In the present case it followed that decision and said, 'It would not effectuate the policies of the Act to give effect in this case to a contract which the Board set aside in its entirety in a prior proceeding. Accordingly, the no-strike clause of that contract can have no impact upon Waugh's refusal to cross the picket line.' 10 The Board's reference to a prior case refers to one decided about a month and a half before the present case. But it was not prior to the conduct out of which this case arises. The Board did not choose to rely on the doctrine of res judicata in the present proceedings, a doctrine whose applicability here is not free from doubt.4 The ruling that the contract is without effect was re-examined in these proceedings and readopted as an essential part of the decision in this case. 11 There are two obstacles in the way of the Board's complete disregard of this contract. The first is that, even if inclusion of a forbidden provision is enough to justify the Board in setting it aside as to the future, it does not follow that it can be wholly ignored in judging events that occurred before it was set aside. It is one thing for the Board to say that the parties should not go on under such a contract; it is another to say that no effect whatever may be given to a contract negotiated in good faith by the union and the employer which both believed to be valid and operative, to which both were conforming their conduct, and which no authority had yet held void. 12 Even where a statute is unconstitutional and hence declared void as of the beginning, this Court has held that its existence before it has been so declared is not to be ignored. 13 We think the principle is applicable here, which Mr. Chief Justice Hughes stated for a unamimous Court: 14 'The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. * * * It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. 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. * * *' Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329. 15 The second hurdle in the way of the Board's position is that it ignores savings and separability clauses of the contract itself, which we set forth in the margin.5 We have never known that they are per se illegal. We do not, of course, question that there may be cases where a forbidden provision is so basic to the whole scheme of a contract and so interwoven with all its terms that it must stand or fall as an entirety. But the Board here simply held that the provision concerning union security invalidates the whole contract, as the examiner said, 'because it does not expressly provide that the operation of the unionsecurity provision was to be conditioned upon compliance with the provisions of Section 9(e) of the Act.'6 (Italics supplied.) 16 The features to which the Board rightly objects not only may be servered but are separated in the contract. The whole contract shows respect for the law and not definance of it. The parties, who could not foresee how some of the provisions of the statute would be interpreted, proposed to go as far toward union security as they are allowed to go, and this is their right; and they proposed to go no farther, and that is their whole duty. Moreover, there is no showing that these illegal provisions in any way affected Waugh's employment, his discharge, or any conduct of any party that is relevant to this decision. 17 The total obliteration of this contract is not in obedience to any command of the statute. It is contrary to common-law contract doctrine. It rests upon no decision of this or any other controlling judicial authority. We see no sound public policy served by it. Realistically, if the formal contract be stricken, the enterprise must go on—labor continues to do its work and is worthy of some hire. The relationship must be governed by some contractual terms. There is no reason apparent why terms should be implied by some outside authority to take the place of legal terms collectively bargained. The employment contract should not be taken out of the hands of the parties themselves merely because they have misunderstood the legal limits of their bargain, where the excess may be severed and separately condemned as it can here. 18 We therefore consider this controversy to require no determination of rights or duties respecting picket lines broader than this contract itself prescribes. It is provided in this agreement that 'No strikes, lockouts or other cessation of work or interference therewith shall be ordered or sanctioned by any party hereto during the terms hereof except as against a party failing to comply with a decision, award, or order of the Adjustment Board.' If this be considered ambiguous in meaning, respondent offered, as evidence of its intent and meaning, to prove that during the negotiations one of the demands made by the union was a clause in the contract with reference to work stoppages which would have said 'No man shall be required to cross a picket line,' that this clause was rejected by respondent and the union acquiesced in the rejection and consented to the no-strike clause as above recited. The trial examiner said: 'All right. Let the offer of proof appear in the record.' From this it is not clear whether it was accepted or rejected. But the arbitrators' interpretation of the contract was in harmony with the offer. They said, 'In addition, the contract between the parties does not specifically permit the refusal by the employee to comply with such an order although other contracts in the industry do contain such a provision.' 19 In the section by which the Labor Management Relations Act prescribes certain practices of labor organizations which shall be deemed unfair, there is a proviso that nothing therein 'shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this act * * *.'7 This clearly enables contracting parties to embody in their contract a provision against requiring an employee to cross a picket line if they so agree. And nothing in the Act prevents their agreeing upon contrary provisions if they consider them appropriate to the particular kind of business involved. An employee's breach of such an agreement may be amde grounds for his discharge without violating § 7 of the Act. 29 U.S.C.A. § 157. National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 334, 59 S.Ct. 508, 510, 83 L.Ed. 682. In some instances he may not, even with an employer's assent, supplement the collective agreement with individual preferences over others employed under it. J. I. Case Co. v. National Labor Relatios Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762. 20 We hold that the no-strike and arbitration provisions of the contract are not prohibited, nor were they rendered illegal by appearing in the same contract with forbidden provisions in view of the circumstances we have recited. Under the circumstances of this case, it was not an unfair labor practice to discharge Waugh, and the judgment below is affirmed. 21 Affirmed. 22 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice MINTON concur, dissenting. 23 Section 7 of the Taft-Hartley Act recognizes a right of employees to work together in 'concerted activities' for their mutual aid and protection. One way some union men help others is to refrain from crossing picket lines. Habitual respect for union picket lines has long been the practice of union men. This practice has been a prized asset of the unions. The Taft-Hartley Act was designed to regulate and restrict the type of concerted activities in which employees could engage. But even that Act did not attempt to deprive unions of the advantage of a policy that required union men to respect picket lines. In § 8(b)(4)(D) of the Act, Congress specifically declared that none of its union-restrictive provisions should be construed to make it unlawful for a man to refuse to cross a picket line thrown up to support a lawful strike. Consequently I agree with the Labor Board that it was an unfair labor practice for this employer to discharge a union employee who refused to cross a picket line. In holding to the contrary I think the Court takes away rights of employees that the Taft-Hartley Act left standing. 24 I say this despite the fact that the Court's opinion is based upon its interpretation of a collective bargaining agreement. In the first place, I would accept the Labor Board's holding that the contract did not conform to the requirements of the Taft-Hartley law. It seems to me an unwise precedent for the Court to substitute its judgment about ths contract for that of the Board. In the second place, I can find no language in that contract which would justify the discharge of the employee here because he insisted upon respecting a union picket line—a right reserved to each employee by reason of § 8(b)(4) (D) of the Act. Believing that the Court departs from the Act's policy in holding as it does, I would affirm the Board's order. 1 197 F.2d 111. 2 344 U.S. 863, 73 S.Ct. 106. 3 'The undersigned, constituting the members of the Board of Adjustment, designated in accordance with the agreement between the parties, having heard the proof and allegations, award as follows: Under Section 4 of the agreement between the parties, it is the obligation of an employee to comply with orders of the foreman, and if such orders are objectionable to him personally, to have the issues discussed and brought to arbitration in accordance with the procedure set forth therein. He may not, in the first instance, refuse to obey the order merely because it is personally distasteful to him, unless it is the type of order which might subject him to physical danger or be contrary to public policy. 'Of course, the order which the employee here refused to obey cannot be held to have been against public policy (and concededly it does not physically endanger him) particularly since the union had knowingly refrained from taking any position and the act required was willingly performed without objection by six other employees who were members of the union. In addition, the contract between the parties does not specifically permit the refusal by the employee to comply with such an order although other contracts in the industry do contain such a provision. 'Consequently it must be ruled that the act of Charles Waugh in refusing to obey the order of the foreman on March 7, 1950, constituted a just cause for discharge. Signed, I. Robert Feinberg, Impartial Chairman; John Somyak, John Fylstra.' Thereunder is stated 'The members of the Adjustment Board designated by the Union dissent from this award, dated, New York, New York, March 31, 1950.' 4 See Wallace Corp. v. Labor Board, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216. 5 'To the best knowledge and belief of the parties this contract now contains no provision which is contrary to federal or state law or regulation. Should, however, any provision of this agreement, at any time during its life, be in conflict with federal or state law or regulation then such provision shall continue in effect only to the extent permitted. In event of any provision of this agreement thus being held inoperative, the remaining provisions of this agreement shall, nevertheless, remain in full force and effect.' 6 29 U.S.C. § 159(e)(1), 29 U.S.C.A. § 159(e)(1): 'Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158(a)(3) of this title, of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.' 7 29 U.S.C.A. § 158(b) 4(D), 29 U.S.C.A. § 158(b)(4)(D).
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345 U.S. 19 73 S.Ct. 568 97 L.Ed. 751 THOMASv.HEMPT BROS. No. 410. Argued Feb. 3, 1953. Decided March 9, 1953. Mr. Henry C. Kessler, Jr., York, Pa., for petitioner. Mr. James H. Booser, Harrisburg, Pa., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 The petitioner Thomas sued the respondent Hempt Brothers in a Pennsylvania Court of Common Pleas to recover overtime wages, liquidated damages, and counsel fees under the provisions of §§ 6, 7 and 16(b) of the Fair Labor Standards Act.* The complaint alleged these facts: Hempt Brothers operate a stone quarry in Pennsylvania, use the stone in manufacturing cement mixtures, and then haul these mixtures in trucks to customers. Their customers were the Pennsylvania Turnpike, the Pennsylvania Railroad Company, an airport, an army depot, and a navy depot, all located within the state of Pennsylvania. The concrete was processed for use by these customers on Pennsylvania projects. The Railroad used its concrete for repair and maintenance of its roadbeds over which were operated interstate passenger and freight trains. The Turnpike used its concrete for laying and building 'a highway which handles the flow of commerce between the states.' The airport used concrete to build and erect landing fields to accommodate the flow of airplanes in interstate commerce. Other purchasers used their concrete on 'projects which aided the flow of commerce, as will be proven by Plaintiff when he has his day in Court.' Thomas was employed in producing and handling the quarry and concrete products. 2 On these allegations the Supreme Court of Pennsylvania sustained the trial court's judgment for Hempt Brothers entered on the ground that the complaint failed to show a recoverable cause of action under the Fair Labor Standards Act. 371 Pa. 383, 89 A.2d 776. And see 1948, 62 Pa.Dist. & Co. 618, 626; and 1950, 74 Pa.Dist. & Co. 213, 218. In sustaining dismissal of the complaint the State Supreme Court recognized that its holding was in conflict with that of the Third Circuit in Tobin v. Alstate Construction Co., 195 F.2d 577. We granted certiorari because of this conflict. 344 U.S. 895, 73 S.Ct. 276. 3 We have today affirmed the Court of Appeals' judgment in the Alstate case. The reasons we gave for affirming that case require that this case be reversed because the state courts erred in holding that the complaint failed to set out a good cause of action under the Fair Labor Standards Act. Accordingly the judgment of the Supreme Court of Pennsylvania is reversed and the cause remanded to that court for proceedings not inconsistent with this opinion. 4 Reversed and remanded. 5 Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS dissent for the reasons stated in the dissenting opinion in No. 296, Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565. * 52 Stat. 1060, as amended, 63 Stat. 910, 29 U.S.C. §§ 206, 207, 216(b), 29 U.S.C.A. §§ 206, 207, 216(b).
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345 U.S. 59 73 S.Ct. 580 97 L.Ed. 821 UNEXCELLED CHEMICAL CORP.v.UNITED STATES. No. 293. Argued Jan. 9, 1953. Decided March 9, 1953. Mr. George Morris Fay, Washington, D.C., for petitioner. Mr. James R. Browning, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This is an action brought by the United States to recover liquidated damages under the Walsh-Healey Act. 49 Stat. 2036, as amended, 41 U.S.C. § 35 et seq., 41 U.S.C.A. § 35 et seq. That Act provides that a contractor furnishing the Government materials, supplies, etc., in an amount exceeding $10,000 must meet specified labor standards. Thus, child labor and convict labor are prohibited, § 1(d), under the sanction of $10 a day for each day any minor or convict is employed plus any underpayment of wages, payable as liquidated damages. § 2. These sums of money owing the United States may be withheld from amounts due on the contracts or may be recovered in suits brought in the name of the United States by the Attorney General. § 2. The Secretary of Labor administers the Act, see § 4; Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 507, 63 S.Ct. 339, 342, 87 L.Ed. 424, making investigations and findings, § 4, and issuing complaints and holding hearings. § 5. 2 On April 17, 1947, the Secretary of Labor issued a complaint charging petitioner with having knowingly employed child labor during the years 1942—1945 in violation of the Act. On February 25, 1949, a Hearing Examiner made a decision in which he found that petitioner had knowingly employed child labor in violation of the Act and was indebted to the United States in the sum of $15,600 as liquidated damages. Under the Rules of Practice of the Department of Labor that decision became final at the end of the twenty-day period within which petitioner had an opportunity to petition the Chief Hearing Examiner for review. 3 Nearly a year later—January 27, 1950—this action was brought. The answer tendered as a defense the two-year statute of limitations contained in § 6 of the Portal-to-Portal Act of 1947, 61 Stat. 84, 87, 29 U.S.C. (Supp. V) § 255, 29 U.S.C.A. § 255. Both parties moved for summary judgment. The District Court granted petitioner's motion, holding that the cause of action arose when petitioner violated the statute and that the two-year statute of limitations began to run from the date. 99 F.Supp. 155. The Court of Appeals reversed, 196 F.2d 264, holding that actions brought by the United States to enforce the child labor provisions of the Walsh-Healey Act are not barred by the two-year limitation period of § 6 of the Portal-to-Portal Act. The case is here on certiorari because of a conflict between that decision and Lance, Inc. v. United States, 4 Cir., 190 F.2d 204, and United States v. Lovknit Mfg. Co., 5 Cir., 189 F.2d 454, from the Courts of Appeals of the Fourth and Fifth Circuits respectively. 4 Section 6 of the Portal-to-Portal Act provides a two-year statute of limitations for any action commenced on or after the date of the Act 'to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act'. Section 6 also provides that 'every such action shall be forever barred unless commenced within two years after the cause of action accrued'. 5 The Portal-to-Portal Act was enacted to remedy what were deemed to be some harsh results of our decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, which held that time necessarily spent by employees walking to work on the employer's premises and in preliminary activities after arriving at their places of work was working time within the scope of the Fair Labor Standards Act, 52 Stat. 1060, 63 Stat. 910, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq. The suits instituted by employees, the amounts claimed, and their threatened impact on business caused Congress to act. See H.R.Rep.No.71, 80th Cong., 1st Sess.; S.Rep.No.48, 80th Cong., 1st Sess. The consequences feared from Anderson v. Mt. Clemens Pottery Co., supra, were summarized in § 1(a) of the Portal-to-Portal Act.1 None of these referred to the liquidated damage provisions of the Walsh-Healey Act. None in fact referred to its child labor provisions. That is the start of the argument made by respondent and adopted by the Court of Appeals to the effect that Congress in the Portal-to-Portal Act had no intention to legislate with respect to the child labor provisions of the Walsh-Healey Act but had in mind only possible suits which employees might bring for unpaid minimum wages and overtime. 6 We do not stop to lay out the entire legislative history of the Portal-to-Portal Act. For the words Congress used in § 6 are too precise for extended argument. Three causes of action are covered—claims for 'unpaid minimum wages,' claims for 'unpaid overtime compensation,' and claims for 'liquidated damages' under three Acts, including the Walsh-Healey Act. The only 'liquidated damages' collectible under the Walsh-Healey Act are collectible by the United States. That marks a difference between that Act and the Fair Labor Standards Act. For under the latter employees may bring suits for double the amount of unpaid wages, plus costs and attorneys' fees. 29 U.S.C. § 216(b), 29 U.S.C.A. § 216(b). That is doubtless why § 1(a) of the Portal-to-Portal Act after summarizing the great burden on employers of the pending employee claims states that 'all of the results which have arisen or may arise under the Fair Labor Standards Act of 1938 * * * may (except as to liability for liquidated damages) arise with respect to the Walsh-Healey' Act and that 'it is, therefore, in the national public interest * * * that this Act shall apply to the Walsh-Healey Act * * *.' That statement does no more than emphasize the difference of the problem of liquidated damages under the two Acts. The fact remains that the Portal-to-Portal Act treats claims for 'liquidated damages' under the Walsh-Healey Act precisely the same as it does claims for 'liquidated damages' under the Fair Labor Standards Act, even though the former are enforced exclusively by the Government, the latter by the employees. Perhaps that does not make for an harmonious whole. Perhaps Congress misconceived the problems under the Walsh-Healey Act.2 However that may be, the present cause of action seems to be precisely described by and expressly included in the words 'liquidated damages under the * * * Walsh-Healey Act'. If this cause of action is not covered by that language, apparently none other is.3 It is not for us then to try to avoid the conclusion that that Congress did not mean what it said. Arguments of policy are relevant when for example a statute has an hiatus that must be filled or there are ambiguities in the legislative language that must be resolved. But when Congress, though perhaps mistakenly or inadvertently, has used language which plainly brings a subject matter into a statute, its word is final—save for questions of constitutional power which have not even been intimated here. 7 Respondent argues that even if this cause of action is subject to the two-year statute of limitations contained in § 6 of the Portal-to-Portal Act, the present suit was timely. The contention is that the cause of action accrues, and the two-year period begins to run, only after it is administratively determined by the Department of Labor that the contractor is liable to the United States for liquidated damages. If that contention is sound, the judgment below must stand as this suit was begun less than two years after the conclusion of the administrative proceedings. 8 We take the opposing view. We conclude that 'the cause of action accrued' within the meaning of § 6 of the Portal-to-Portal Act when the minors were employed. That was the violation of the Walsh-Healey Act, giving rise to the liability for liquidated damages. It is true that the administration of the Act is entrusted in large measure to the Secretary of Labor. See Endicott Johnson Corp. v. Perkins, supra. He has broad investigatory and hearing powers. §§ 4, 5. He has authority to proscribe those who have violated the Act, barring them from Government contracts for three years. § 3. Moneys withheld as liquidated damages are placed in a special fund and paid on order of the Secretary of Labor to the employees. § 2. These powers of the Secretary, important as they are in determining the relation between the courts and the administrative branch of government, Endicott Johnson Corp. v. Perkins, supra, are irrelevant to the narrow question of law that is presented. A cause of action is created when there is a breach of duty owed the plaintiff. It is that breach of duty, not its discovery, that normally is controlling. Section 2 of the Walsh-Healey Act provides that the Attorney General may bring suit to recover moneys owed the United States.4 The fact that due deference to the administrative process should make a court hold its hand until the administrative proceedings before the Secretary of Labor have been completed, Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576; Thompson v. Texas Mexican R. Co., 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132; General American Tank Corp. v. El Dorado Terminal Co., 308 U.S. 422, 423, 60 S.Ct. 325, 327, 84 L.Ed. 361; United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211, is a matter of judicial administration and of no relevancy here. The statutory liability accrued when the minors were employed. It was from that date that the period of limitations began to run. 9 This construction, it is said, will prejudice the power of the United States to safeguard the public interest. But if there is prejudice it is the result of the Portal-to-Portal Act which Congress, having made, can refashion. 10 There is the final argument that the action was, in any event, commenced when the administrative proceedings were initiated. Section 7 of the Portal-to-Portal Act provides that 'an action is commenced for the purposes of section 6 * * * on the date when the complaint is filed'. It is argued that the issuance of a formal complaint in the administrative proceedings (the customary procedure in Walsh-Healey cases) is the commencement of an action in the statutory sense. Congress, however, when it wrote § 7 was addressing itself to law suits in the conventional sense. Commencement of an action by the filing of a complaint has too familiar a history and the purpose of §§ 6 and 7 was too obvious for us to assume that Congress did not mean to use the words in their ordinary sense. 11 Reversed. 1 '§ 1. (a) The Congress hereby finds that the Fair Labor Standards Act of 1938, as amended, has been interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers with the results that, if said Act as so interpreted or claims arising under such interpretations were permitted to stand, (1) the payment of such liabilities would bring about financial ruin of many employers and seriously impair the capital resources of many others, thereby resulting in the reduction of industrial operations, halting of expansion and development, curtailing employment, and the earing power of employees; (2) the credit of many employers would be seriously impaired; (3) there would be created both an extended and continuous uncertainty on the part of industry, both employer and employee, as to the financial condition of productive establishments and a gross inequality of competitive conditions between employers and between industries; (4) employees would receive windfall payments, including liquidated damages, of sums for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay; (5) there would occur the promotion of increasing demands for payment to employees for engaging in activities no compensation for which had been contemplated by either the employer or employee at the time they were engaged in; (6) voluntary collective bargaining would be interefered with and industrial disputes between employees and employers and between employees and employees would be created; (7) the courts of the country would be burdened with excessive and needless litigation and champertous practices would be encouraged; (8) the Public Treasury would be deprived of large sums of revenues and public finances would be seriously deranged by claims against Public Treasury for refunds of taxes already paid; (9) the cost to the Government of goods and services heretofore and hereafter purchased by its various departments and agencies would be unreasonably increased and the Public Treasury would be seriously affected by consequent increased cost of war contracts; and (10) serious and adverse effects upon the revenues of Federal, State, and local governments would occur.' 2 See for example H.R.Rep.No.71, supra, p. 5: 'The Walsh-Healey Act also concerns itself in its field with minimum wages and overtime compensation. The Bacon-Davis Act, 40 U.S.C.A. § 276a et seq., has provisions relating to minimum wages and other conditions of employment. These two acts are therefore affected by the Mount Clemens decision. The situation described herein as to the Fair Labor Standards Act applies to that existing under the Walsh-Healey Act and the Bacon-Davis Act. The same necessity exists there for remedial legislation.' 3 We do not reach the question whether employees have standing to sue under the Walsh-Healey Act. No provision, however, is made for their recovery of liquidated damages. The following provision relates to their rights: 'All sums withheld or recovered as deductions, rebates, refunds, or underpayments of wages shal be held in a special deposit account and shall be paid, on order of the Secretary of Labor, directly to the employees who have been paid less than minimum rates of pay as set forth in such contracts and on whose account such sums were withheld or recovered: Provided, That no claims by employees for such payments shall be entertained unless made within one year from the date of actual notice to the contractor of the withholding or recovery of such sums by the United States of America.' § 2. 4 Section 2 provides in pertinent part: 'Any sums of money due to the United States of America by reason of any violation of any of the representations and stipulations of said contract set forth in section 1 hereof may be withheld from any amounts due on any such contracts or may be recovered in suits brought in the name of the United States of America by the Attorney General thereof.'
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345 U.S. 1 73 S.Ct. 528 97 L.Ed. 727 UNITED STATESv.REYNOLDS et al. No. 21. Argued Oct. 21, 1952. Decided March 9, 1953. Mr. Samuel D. Slade, Washington, D.C., for petitioner. Mr. Charles J. Biddle, Philadelphia, Pa., for respondents. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 These suits under the Tort Claims Act1 arise from the death of three civilians in the crash of a B—29 aircraft at Waycross, Georgia, on October 6, 1948. Because an important question of the Government's privilege to resist discovery2 is involved, we granted certiorari. 343 U.S. 918, 72 S.Ct. 678, 96 L.Ed. 1332. 2 The aircraft had taken flight for the purpose of testing secret electronic equipment, with four civilian observers aboard. While aloft, fire broke out in one of the bomber's engines. Six of the nine crew members, and three of the four civilian observes were killed in the crash. 3 The widows of the three deceased civilian observers brought consolidated suits against the United States. In the pretrial stages the plaintiffs moved, under Rule 34 of the Federal Rules of Civil Procedure,3 for production of the Air Force's official accident investigation report and the statements of the three surviving crew members, taken in connection with the official investigation. The Government moved to quash the motion, claiming that these matters were privileged against disclosure pursuant to Air Force regulations promulgated under R.S. § 161.4 The District Judge sustained plaintiffs' motion, holding that good cause for production had been shown.5 The claim of privilege under R.S. § 161 was rejected on the premise that the Tort Claims Act, in making the Government liable 'in the same manner' as a private individual6 had waived any privilege based upon executive control over governmental documents. 4 Shortly after this decision, the District Court received a letter from the Secretary of the Air Force, stating that 'it has been determined that it would not be in the public interest to furnish this report. * * *' The court allowed a rehearing on its earlier order, and at the rehearing the Secretary of the Air Force filed a formal 'Claim of Privilege.' This document repeated the prior claim based generally on R.S. § 161, and then stated that the Government further objected to production of the documents 'for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force.' An affidavit of the Judge Advocate General, United States Air Force, was also filed with the court, which asserted that the demanded material could not be furnished 'without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.' The same affidavit offered to produce the three surviving crew members, without cost, for examination by the plaintiffs. The witnesses would be allowed to refresh their memories from any statement made by them to the Air Force, and authorized to testify as to all matters except those of a 'classified nature.' 5 The District Court ordered the Government to produce the documents in order that the court might determine whether they contained privileged matter. The Government declined, so the court entered an order, under Rule 37(b)(2)(i),7 that the facts on the issue of negligence would be taken as established in plaintiffs' favor. After a hearing to determine damages, final judgment was entered for the plaintiffs. The Court of Appeals affirmed,8 both as to the showing of good cause for production of the documents, and as to the ultimate disposition of the case as a consequence of the Government's refusal to produce the documents. 6 We have had broad propositions pressed upon us for decision. On behalf of the Government it has been urged that the executive department heads have power to withhold any documents in their custody from judicial view if they deem it to be in the public interest.9 Respondents have asserted that the executive's power to withhold documents was waived by the Tort Claims Act. Both positions have constitutional overtones which we find it unnecessary to pass upon, there being a narrower ground for decision. Touhy v. Ragen, 1951, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417; Rescue Army v. Municipal Court of Los Angeles, 1947, 331 U.S. 549, 574—585, 67 S.Ct. 1409, 1422—1427, 91 L.Ed. 1666. 7 The Tort Claims Act expressly makes the Federal Rules of Civil Procedure applicable to suits against the United States.10 The judgment in this case imposed liability upon the Government by operation of Rule 37, for refusal to produce documents under Rule 34. Since Rule 34 compels production only of matters 'not privileged,' the essential question is whether there was a valid claim of privilege under the Rule. We hold that there was, and that, therefore, the judgment below subjected the United States to liability on terms to which Congress did not consent by the Tort Claims Act. 8 We think it should be clear that the term 'not privileged' as used in Rule 34, refers to 'privileges' as that term is understood in the law of evidence. When the Secretary of the Air Force lodged his formal 'Claim of Privilege,' he attempted therein to invoke the privilege against revealing military secrets, a privilege which is well established in the law of evidence.11 The existence of the privilege is conceded by the court below,12 and, indeed, by the most outspoken critics of governmental claims to privilege.13 9 Judicial experience with the privilege which protects military and state secrets has been limited in this country.14 English experience has been more extensive, but still relatively slight compared with other evidentiary privileges.15 Nevertheless, the principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government and must be asserted by it; it can neither be claimed16 nor waived17 by a private party. It is not to be lightly invoked.18 There must be formal claim of privilege, lodged by the head of the department which has control over the matter,19 after actual personal consideration by that officer.20 The court itself must determine whether the circumstances are appropriate for the claim of privilege,21 and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.22 The latter requirement is the only one which presents real difficulty. As to it, we find it helpful to draw upon judicial experience in dealing with an analogous privilege, the privilege against self-incrimination. 10 The privilege against self-incrimination presented the courts with a similar sort of problem. Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses. Indeed, in the earlier stages of judicial experience with the problem, both extremes were advocated, some saying that the bare assertion by the witness must be taken as conclusive, and others saying that the witness should be required to reveal the matter behind his claim of privilege to the judge for verification.23 Neither extreme prevailed, and a sound formula of compromise was developed. This formula received authoritative expression in this country as early as the Burr trial.24 There are differences in phraseology, but in substance it is agreed that the court must be satisfied from all the evidence and circumstances, and 'from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' Hoffman v. United States, 1951, 341 U.S. 479, 486—487, 71 S.Ct. 814, 818, 95 L.Ed. 1118.25 If the court is so satisfied, the claim of the privilege will be accepted without requiring further disclosure. 11 Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers. 12 In the instant case we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past was has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices have greatly enhanced the effective use of air power. It is equally apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests. On the record before the trial court it appeared that this accident occurred to a military plane which had gone aloft to test secret electronic equipment. Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission. 13 Of course, even with this information before him, the trial judge was in no position to decide that the report was privileged until there had been a formal claim of privilege. Thus it was entirely proper to rule initially that petitioner had shown probable cause for discovery of the documents. Thereafter, when the formal claim of privilege was filed by the Secretary of the Air Force, under circumstances indicating a reasonable possibility that military secrets were involved, there was certainly a sufficient showing of privilege to cut off further demand for the document on the showing of necessity for its compulsion that had then been made. 14 In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.26 A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail. Here, necessity was greatly minimized by an available alternative, which might have given respondents the evidence to make out their case without forcing a showdown on the claim of privilege. By their failure to pursue that alternative, respondents have posed the privilege question for decision with the formal claim of privilege set against a dubious showing of necessity. 15 There is nothing to suggest that the electronic equipment, in this case, had any causal connection with the accident. Therefore, it should be possible for respondents to adduce the essential facts as to causation without resort to material touching upon military secrets. Respondents were given as reasonable opportunity to do just that, when petitioner formally offered to make the surviving crew members available for examination. We think that offer should have been accepted. 16 Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free.27 The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum where the Government is not the moving party, but is a defendant only on terms to which it has consented. 17 The decision of the Court of Appeals is reversed and the case will be remanded to the District Court for further proceedings consistent with the views expressed in this opinion. 18 Reversed and remanded. 19 Mr. Justice BLACK, Mr. Justice FRANKFURTER, and Mr. Justice JACKSON dissent substantially for the reasons set forth in the opinion of Judge Maris below. 192 F.2d 987. 1 28 U.S.C. §§ 1346, 2674, 28 U.S.C.A. §§ 1346, 2674. 2 Federal Rules of Civil Procedure, Rule 34, 28 U.S.C.A. 3 'Rule 34. Discovery and Production of Documents and Things for Inspection, Copying, or Photographing. Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon within the scope of the examination permitted by Rule 26(b). The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.' 4 5 U.S.C. § 22, 5 U.S.C.A. § 22: 'The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.' Air Force Regulation No. 62—7(5)(b) provides: 'Reports of boards of officers, special accident reports, or extracts therefrom will not be furnished or made available to persons outside the authorized chain of command without the specific approval of the Secretary of the Air Force.' 5 10 F.R.D. 468. 6 28 U.S.C. § 2674, 28 U.S.C.A. § 2674: 'The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.' 7 'Rule 37. Refusal to Make Discovery: Consequences '(b) Failure to Comply With Order. (2) Other Consequences. If any party or an officer or managing agent of a party refuses to obey * * * an order made under Rule 34 to produce any document * * *, the court may make such orders in regard to the refusal as are just, and among others the following: '(i) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; * * *.' 8 192 F.2d 987. 9 While claim of executive power to suppress documents is based more immediately upon R.S. § 161 (see supra, note 4), the roots go much deeper. It is said that R.S. § 161 is only a legislative recognition of an inherent executive power which is protected in the constitutional system of separation of power. 10 28 U.S.C. (1946 ed.) § 932; United States v. Yellow Cab Co., 1951, 340 U.S. 543, 553, 71 S.Ct. 399, 406, 95 L.Ed. 523. 11 Totten v. United States, 1875, 92 U.S. 105, 107, 23 L.Ed. 605; Firth Sterling Steel Co. v. Bethlehem Steel Co., D.C.E.D.Pa.1912, 199 F. 353; Pollen v. Ford Instrument Co., D.C.E.D.N.Y.1939, 26 F.Supp. 583; Cresmer v. United States, D.C.E.D.N.Y.1949, 9 F.R.D. 203; see Bank Line v. United States, D.C.S.D.N.Y.1946, 68 F.Supp. 587, Id., 2 Cir., 1947, 163 F.2d 133. 8 Wigmore on Evidence (3d ed.) § 2212(a), p. 161, and § 2378(g)(5), at pp. 785 et seq.; 1 Greenleaf on Evidence (16th ed.) §§ 250—251; Sanford, Evidentiary Privileges Against the Production of Data Within the Control of Executive Departments, 3 Vanderbilt L.Rev. 73, 74—75 (1950). 12 192 F.2d 987, 996. 13 See Wigmore, op. cit. supra, note 11. 14 See cases cited supra, note 11. 15 Most of the English precedents are reviewed in the recent case of Duncan v. Cammell, Laird & Co., (1942) A.C. 624. 16 First Sterling Steel Co. v. Bethlehem Steel Co., D.C.E.D.Pa.1912, 199 F. 353. 17 In re Grove, 3 Cir., 1910, 180 F. 62. 18 Marshall, C.J., in the Aaron Burr trial, I Robertson's Reports 186: 'That there may be matter, the production of which the court would not require, is certain. * * * What ought to be done, under such circumstances, presents a delicate question, the discussion of which, it is hoped, will never be rendered necessary in this country.' 19 Firth case, supra, note 16. 20 'The essential matter is that the decision to object should be taken by the minister who is the political head of the department, and that he should have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced. * * *' Duncan v. Cammell, Laird & Co., (1942) A.C. 624, 638. 21 Id., at page 642: 'Although an objection validly taken to production, on the ground that this would be injurious to the public interest, is conclusive, it is important to remember that the decision ruling out such documents is the decision of the judge. * * * It is the judge who is in control of the trial, not the executive. * * *' (Emphasis supplied.) 22 Id., at pages 638—642; cf. the language of this Court in Hoffman v. United States, 1951, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, speaking of the analogous hazard of probing too far in derogation of the claim of privilege against self-incrimination: 'However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee.' (Emphasis supplied.) 23 Compare the expressions of Rolfe, B. and Willes, C.J., in Regina v.Garbett, 2 C. & K. 474, 492 (1847); see 8 Wigmore on Evidence (3d ed.) § 2271. 24 I Robertson's Reports 244: 'When a question is propounded, it belongs to the Court to consider and decide whether any direct answer to it can implicate the witness; if this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The Court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be, and a disclosure of that fact to the judges would strip him of the privilege which the law allows and which he claims.' 25 Brown v. United States, 1928, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500; Mason v. United States, 1917, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198. 26 See Totten v. United States, 1875, 92 U.S. 105, 23 L.Ed 605, where the very subject matter of the action, a contract to perform espionage, was a matter of state secret. The action was dismissed on the pleadings without ever reaching the question of evidence, since it was so obvious that the action should never prevail over the privilege. 27 United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503; United States v. Beekman, 22 Cir., 1946, 155 F.2d 580.
45
345 U.S. 67 73 S.Ct. 526 97 L.Ed. 828 FOWLERv.STATE OF RHODE ISLAND. No. 340. Argued Feb. 3, 1953. Decided March 9, 1953. Mr. Hayden C. Covington, Brooklyn, N.Y., for appellant. Mr. Raymond J. Pettine, Providence, R.I., for appellee. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 The City of Pawtucket, Rhode Island, has an ordinance which reads as follows: 2 'Sec. 11. No person shall address any political or religious meeting in any public park; but this section shall not be construed to prohibit any political or religious club or society from visiting any public park in a body, provided that no public address shall be made under the auspices of such club or society in such park.' 3 Johovah's Witnesses, a religious sect, assembled in Slater Park of Pawtucket for a meeting which at the trial was conceded to be religious in character. About 400 people attended, 150 being Jehovah's Witnesses. Appellant is a minister of this sect, residing in Arlington, Mass. He was invited to Pawtucket as a visiting miniter to give a talk before the Pawtucket congregation of Jehovah's Witnesses. Appellant accepted the invitation, attended the meeting in the park, and addressed it over two loud speakers. It was a quiet, orderly meeting with no disturbances or breaches of the peace whatsoever. 4 Appellant's address was entitled 'The Pathway to Peace.' He discussed the futility of efforts being made to establish peace in the world. And then, according to his uncontradicted testimony he 'launched forth into the scriptural evidence to show where we were on the string of time; that we hard reached the end of this wicked system of things.' Appellant had been talking only a few minutes when he was arrested by the police and charged with violating the ordinance set forth above. He was tried and found guilty over objections that the ordinance as so construed and applied violated the First and the Fourteenth Amendments of the Constitution. He was fined $5. His conviction was affirmed by the Rhode Island Supreme Court. 91 A.2d 27. And see Fowler v. State, R.I., 83 A.2d 67, an earlier opinon answering certified questions and holding the ordinance valid. The case is here on appeal. 28 U.S.C. § 1257(2). 5 Davis v. Commonwealth of Massachusetts, 167 U.S. 43, 17 S.Ct. 731, 42 L.Ed. 71, decided in 1897, sustained a conviction of a man for making a speech on the Boston Commons in violation of an ordinance that forbade the making of a public address there without a permit from the mayor. Much of the oral argument and most of the briefs have been devoted on the one hadn to a defense of the Davis case and on the other hand to an attack on it. Analyses of subsequent decisions have been submitted in an effort either to demonstrate that the Davis case is today good law, or to show that it has been so qualified as no longer to have any vitality. We are invited by appellant to overrule it; we are asked by respondent to reaffirm it. 6 We put to one side the problems presented by the Davis case and its offspring. For there is one aspect of the present case that undercuts all others and makes it necessary for us to reverse the judgment. As we have said, it was conceded at the trial that this meeting was a religious one. On oral argument before the Court the Assistant Attorney General further conceded that the ordinance, as construed and applied, did not prohibit church services in the park. Catholics could hold mass in Slater Park and Protestants could conduct their church services there without violating the ordinance. Church services normally entail not only singing, prayer, and other devotionals but preaching as well. Even so, those services would not be barred by the ordinance. That broad concession, made in oral argument, is fatal to Rhode Island's case. For it plainly shows that a religious service of Jehovah's Witnesses is treated differently than a religious service of other sects. That amounts to the state preferring some religious groups over this one. In Niemotko v. State of Maryland, 340 U.S. 268, 272—273, 71 S.Ct. 325, 327—328, 95 L.Ed. 267, 280, we had a case on all fours with this one. There a public park, open to all religious groups, was denied Jehovah's Witnesses because of the dislike which the local officials had of these people and their views. That was a discrimination which we held to be barred by the First and Fourteenth Amendments. 7 Appellant's sect has conventions that are different from the practices of other religious groups. Its religious service is less ritualistic, more unorthodox, less formal than some. But apart from narrow exceptions not relevant here, Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637, it is no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment. Nor is it in the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings. Sermons are as much a part of a religious service as prayers. They cover a wide range and have as great a diversity as the Bible or other Holy Book from which they commonly take their texts. To call the words which one miniter speaks to his congregation a sermon, immune from regulation, and the words of another minister an address, subject to regulation, is merely an indirect way of preferring one religion over another. That would be precisely the effect here if we affirmed this conviction in the face of the concession made during oral argument. Baptist, Methodist, Presbyterian, or Episcopal ministers, Catholic priests, Moslem mullahs, Buddhist monks could all preach to their congregations in Pawtucket's parks with impunity. But the hand of the law would be laid on the shoulder of a minister of this unpopular group for performing the same function. 8 The judgment is reversed and the cause is remanded to the Supreme Court of Rhode Island for proceedings not inconsistent with this opinion. 9 Reversed. 10 Mr. Justice FRANKFURTER concurs in the opinion of the Court, except insofar as it may derive support from the First Amendment. For him it is the Equal-Protection-of-the-Laws Clause of the Fourteenth Amendment that condemns the Pawtucket ordinance as applied in this case. 11 Mr. Justice JACKSON concurs in the result.
23
345 U.S. 117 73 S.Ct. 560 97 L.Ed. 864 NATIONAL LABOR RELATIONS BOARDv.GAMBLE ENTERPRISES, Inc. No. 238. Argued Nov. 19, 1952. Decided March 9, 1953. Mr. Bernard Dunau, Washington, D.C., for petitioner. Mr. Frank C. Heath, Cleveland, Ohio, for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 This case is a companion to American Newspaper Publishers Ass'n v. National Labor Relations Board, 345 U.S. 100, 73 S.Ct. 552. 2 The question here is whether a labor organization engages in an unfair labor practice, within the meaning of § 8(b)(6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947,1 when it insists that the management of one of an interstate chain of theaters shall employ a local orchestra to play in connection with certain programs, although that management does not need or want to employ that orchestra. For the reasons hereafter stated, we hold that it does not. 3 While the circumstances differ from those in the preceding case, the interpretation there given to § 8(b)(6) is controlling here. 4 For generations professional musicians have faced a shortage in the local employment needed to yield them a livelihood. They have been confronted with the competition of military bands, traveling bands, foreign musicians on tour, local amateur organizations and, more recently, technological developments in reproduction and broadcasting. To help them conserve local sources of employment, they developed local protective societies. Since 1896, they also have organized and maintained on a national scale the American Federation of Musicians, affiliated with the American Federation of Labor. By 1943, practically all professional instrumental performers and conductors in the United States had joined the Federation, establishing a membership of over 200,000, with 10,000 more in Canada.2 5 The Federation uses its nationwide control of professional talent to help individual members and local unions. It insists that traveling band contracts be subject to its rules, laws and regulations. Article 18, § 4, of its By-Laws provides: 'Traveling members cannot, without the consent of a Local, play any presentation performances in its jurisdiction unless a local house orchestra is also employed.'3 6 From this background we turn to the instant case. For more than 12 years the Palace Theater in Akron, Ohio, has been one of an interstate chain of theaters managed by respondent, Gamble Enterprises, Inc., which is a Washington corporation with its principal office in New York. Before the decline of vaudeville and until about 1940, respondent employed a local orchestra of nine union musicians to play for stage acts at that theater. When a traveling band occupied the stage, the local orchestra played from the pit for the vaudeville acts and, at times, augmented the performance of the traveling band. 7 Since 1940, respondent has used the Palace for showing motion pictures with occasional appearances of traveling bands. Between 1940 and 1947, the local musicians, no longer employed on a regular basis, held periodic rehearsals at the theater and were available when required. When a traveling band appeared there, respondent paid the members of the local orchestra a sum equal to the minimum union wages for a similar engagement but they played no music. 8 The Taft-Hartley Act, containing § 8(b)(6), was passed, over the President's veto, June 23, 1947, and took effect August 22. Between July 2 and November 12, seven performances of traveling bands were presented on the Palace stage. Local musicians were neither used nor paid on those occasions. They raised no objections and made no demands for 'stand-by' payments. However, in October, 1947, the American Federation of Musicians, Local No. 24 of Akron, Ohio, here called the union, opened negotiations with respondent for the latter's employment of a pit orchestra of local musicians whenever a traveling band performed on the stage. The pit orchestra was to play overtures, 'intermissions' and 'chasers' (the latter while patrons were leaving the theater). The union required acceptance of this proposal as a condition of its consent to local appearances of traveling bands. Respondent declined the offer and a traveling band scheduled to appear November 20 canceled its engagement on learning that the union had withheld its consent. 9 May 8, 1949, the union made a new proposal. It sought a guaranty that a local orchestra would be employed by respondent on some number of occasions having a relation to the number of traveling band appearances.4 This and similar proposals were declined on the ground that the local orchestra was neither necessary nor desired. Accordingly, in July, 1949, the union again declined to consent to the appearance of a traveling band desired by respondent and the band did not appear. In December an arrangement was agreed upon locally for the employment of a local orchestra to play in connection with a vaudeville engagement on condition that the union would consent to a later traveling band appearance without a local orchestra. Respondent's New York office disapproved the plan and the record before us discloses no further agreement. 10 In 1949, respondent filed charges with the National Labor Relations Board asserting that the union was engaging in the unfair labor practice defined in § 8(b)(6). The Regional Director of the Board issued a complaint to that effect. After a hearing the trial examiner found respondent to be engaged in interstate commerce and recommended that the Board assert jurisdiction. 92 N.L.R.B., 1528, 1538, 1540. On the merits, he concluded that the union's conduct 'was nothing more or less than a proposal for a stand-by engagement,' but he was not convinced that the union's demands were an 'attempt to cause' any payment to be made 'in the nature of an exaction.' He, accordingly, recommended dismissal of the complaint. 92 N.L.R.B. at pages 1549, 1550, 1551. The Board unanimously agreed to assert jurisdiction. With one dissent, it also ordered dismissal of the complaint, but it did so on grounds differing from those urged by the trial examiner. 92 N.L.R.B. at pages 1528—1529. It said: 11 'On the contrary, the instant record shows that in seeking employment of a local orchestra, the * * * (union) insisted that such orchestra be permitted to play at times which would not conflict with the traveling bands' renditions. Thus, the record herein does not justify a finding that, during the period embraced by the charges herein, the * * * (union) was pursuing its old policy and was attempting to cause the charging party to make payments to local musicians for services which were not to be performed. 12 'In our opinion, Section 8(b)(6) was not intended to reach cases where a labor organization seeks actual employment for its members, even in situations where the employer does not want, does not need, and is not willing to accept such services. Whether it is desirable that such objective should be made the subject of an unfair labor practice is a matter for further congressional action, but we believe that such objective is not proscribed by the limited provisions of Section 8(b)(6). 13 'Upon the entire record in the case, we find that the * * * (union) has not been guilty of unfair labor practices within the meaning of Section 8(b)(6) of the Act.' 92 N.L.R.B. at pages 1531, 1533—1534. 14 The Court of Appeals for the Sixth Circuit did not disturb the Board's finding that the union sought actual employment for its members, but it held, nevertheless, that the union was engaging in a labor practice declared unfair by § 8(b)(6). It, therefore, set aside the Board's order of dismissal and remanded the cause. 196 F.2d 61. For reasons stated in the American Newspaper case, 73 S.Ct. 552, we granted certiorari. 344 U.S. 814, 73 S.Ct. 43. We denied the union's motion to intervene, 344 U.S. 872, 73 S.Ct. 165, but, with the consent of the parties, it filed a brief as amicus curiae, supporting the Board. 15 We accept the finding of the Board, made upon the entire record, that the union was seeking actual employment for its members and not mere 'stand-by' pay. The Board recognized that, formerly, before § 8(b)(6) had taken effect, the union had received 'stand-by' payments in connection with traveling band appearances. Since then, the union has requested no such payments and has received none. It has, however, requested and consistently negotiated for actual employment in connection with traveling band and vaudeville appearances. It has suggested various ways in which a local orchestra could earn pay for performing competent work and, upon those terms, it has offered to consent to the appearance of traveling bands which are Federation-controlled. Respondent, with equal consistency, has declined these offers as it had a right to do. 16 Since we and the Board treat the union's proposals as in good faith contemplating the performance of actual services, we agree that the union has not, on this record engaged in a practice proscribed by § 8(b)(6). It has remained for respondent to accept or reject the union's offers on their merits in the light of all material circumstances. We do not find it necessary to determine also whether such offers were 'in the nature of an exaction.' We are not dealing here with offers of mere 'token' or nominal services. The proposals before us were appropriately treated by the Board as offers in good faith of substantial performances by competent musicians. There is no reason to think that sham can be substituted for substance under § 8(b)(6) any more than under any other statute. Payments for 'standing-by,' or for the substantial equivalent of 'standing-by,' are not payments for services performed, but when an employer receives a bona fide offer of competent performance of relevant services, it remains for the employer, through free and fair negotiation, to determine whether such offer shall be accepted and what compensation shall be paid for the work done.5 17 The judgment of the Court of Appeals, accordingly, is reversed and the cause is remanded to it. 18 Reversed and remanded. 19 Mr. Justice JACKSON, dissenting. 20 The economic advantages or abuses that result from 'featherbedding' admittedly are not our concern. But, I cannot escape the conclusion that the facts of this case bring it within the statute which makes it an 'unfair labor practice' for a labor organization or its agents 'to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value in the nature of an exaction, for services which are not performed or not to be performed. * * *' 61 Stat. 140—142, 29 U.S.C. (Supp. V) § 158(b) (6), 29 U.S.C.A. § 158(b)(6). Granting that Congress failed to reach all 'featherbedding' practices, its enactment should not be interpreted to have no practical effect beyond requiring a change in the form of an exaction. 21 Accepting the result in American Newspaper Publishers Association v. National Labor Relations Board, 345 U.S. 100, 73 S.Ct. 552, I think that differences in this case require a contrary result. 22 In both cases, the payments complained of obviously were caused by the respective unions. In both, the work performed was unwanted by the employer and its cost burdened the industry and contributed nothing to it. But here resemblance ceases. The Typographical Union is adhering to an old custom which mutual consent established and for years maintained and to which other terms of employment have long since been adjusted. In this case the union has substituted for the practice specifically condemned by the statute a new device for achieving the same result. The two cases may exemplify the same economic benefits and detriments from made work, but superfluous effort which long and voluntary usage recognized as a fair adjustment of service conditions between employer and employee in the printing industry is 'exacted' for the first time in the entertainment field in order to evade the law. 23 That the payments involved in this case constitute a union 'exaction' within the statute would seem hard to deny, whatever may be thought of the printers' case. As the Court says, the American Federation of Musicians has established a 'nationwide control of professional talent.' No artist or organization can perform without its approval. The respondent is in the entertainment business but can get no talent to exhibit unless it makes these payments. The 'service' tendered for the payments is not wanted or useful. What the Court speaks of as 'free and fair negotiation, to determine whether such offer shall be accepted' is actually only freedom to pay or go out of business with all its attendant losses. If that does not amount to an exaction, language has lost all integrity of meaning. 24 But the Court holds that so long as some exertion is performed or offered by the employees, no matter how useless or unwanted, it can never be said that there is an exaction 'for services which are not performed or not to be performed.' This language undoubtedly presents difficulties of interpretation, but I am not persuaded that it is so meaningless and empty in practice as the Court would make it. Congress surely did not enact a prohibition whose practical application would be restricted to those without sufficient imagination to invent some 'work.' 25 Before this Act, the union was compelling the theatre to pay for no work. When this was forbidden, it sought to accomplish the same result by compelling it to pay for useless and unwanted work. This is not continuation of an old usage that long practice has incorporated into the industry but is a new expedient devised to perpetuate a union policy in the face of its congressional condemnation. Such subterfuge should not be condoned. 26 Mr. Justice CLARK, with whom The CHIEF JUSTICE joins, dissenting. 27 The CHIEF JUSTICE and I dissent on the basis of our dissenting opinion in American Newspaper Publishers Association v. Labor Board, 345 U.S. 100, 73 S.Ct. 552. We cannot perceive a tenable distinction between this and the printers' 'featherbedding' case. To the extent of that consistency, today's majority and we are in accord. True, the employees there 'work' on the keyboard of a Linotype, and here on the keys of a musical instrument. But, realistically viewed, one enterprise is as bogus as the other; both are boondoggles which the employer 'does not want, does not need, and is not even willing to accept.' The statute, moreover, does not distinguish between modern make-work gimmicks and featherbedding techniques encrusted in an industry's lore. Congress accorded no preferred position to seasoned unfair labor practices, and § 8(b)(6) does not recognize prescriptive rights in the law. Custom and tradition can no more deprive employers than employees of statutory rights. Cf. National Labor Relations Board v. Newport News Shipbuilding Co., 1939, 308 U.S. 241, 250—251, 60 S.Ct. 203, 208, 84 L.Ed. 219; Tennessee Coal, Iron & R. Co. v. Muscoda Local, 1944, 321 U.S. 590, 601—602, 64 S.Ct. 698, 704—705, 88 L.Ed. 949; Jewell Ridge Coal Corp. v. Local No. 6167, 1945, 325 U.S. 161, 167, 65 S.Ct. 1063, 1066, 89 L.Ed. 1534. 1 'Sec. 8. * * * '(b) It shall be an unfair labor practice for a labor organization or its agents— '(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. * * *' 61 Stat. 140—142, 29 U.S.C. (Supp. V) § 158(b)(6), 29 U.S.C.A. § 158(b)(6). 2 Countryman, The Organized Musicians, 16 U. of Chi.L.Rev. 57—85, 239—297. 3 Article 18, § 3, provides: 'Traveling members appearing in acts with vaudeville unit or presentation shows are not permitted to play for any other acts on the bill without consent of the Local.' 4 The union suggested four plans. Each called for actual playing of music by a local union orchestra in connection with the operation of the theater: (1) to play overtures, intermissions and chasers; (2) to play the music required for vaudeville acts not an integral part of a traveling band ensemble; (3) to perform on stage with vaudeville acts booked by respondent; or (4) to play at half of the total number of respondent's stage shows each year. 5 In addition to the legislative history cited in the American Newspaper case, the following explanation by Senator Ball emphasizes the point that § 8(b)(6) proscribes only payments where no work is done. As a member of the Senate Committee on Labor and Public Welfare, and as one who had served as a Senate conferee, he made it on the floor of the Senate immediately preceding the passage of the bill, over the President's veto, June 23, 1947: 'There is not a word in that (§ 8(b)(6)), Mr. President, about 'featherbedding.' It says that it is an unfair practice for a union to force an employer to pay for work which is not performed. In the colloquy on this floor between the Senator from Florida (Mr. Pepper) and the Senator from Ohio (Mr. Taft), before the bill was passed, it was made abundantly clear that it did not apply to rest periods, it did not apply to speed-ups or safety provisions, or to anything of that nature; it applied only to situations, for instance where the Musicians' Federation forces an employer to hire one orchestra and then to pay for another stand-by orchestra, which does no work at all.' (Emphasis supplied.) 93 Cong.Rec. 7529.
67
345 U.S. 128 73 S.Ct. 570 97 L.Ed. 872 RAMSPECK et al.v.FEDERAL TRIAL EXAMINERS CONFERENCE et al. No. 278. Argued Jan. 9, 12, 1953. Decided March 9, 1953. Rehearing Denied April 6, 1953. See 345 U.S. 931, 73 S.Ct. 778. Mr. Robert W. Ginnane, Washington, D.C., for petitioners. Mr. Charles S. Rhyne, Washington, D.C., for respondents. Mr. Justice MINTON delivered the opinion of the Court. 1 The present suit was brought by the Federal Trial Examiners Conference,1 an unincorporated association of trial examiners, and by a number of individual trial examiners, against the members of the United States Civil Service Commission and the National Labor Relations Board. The plaintiffs, who had been appointed pursuant to § 11 of the Administrative Procedure Act, 60 Stat. 244, 5 U.S.C. § 1010, 5 U.S.C.A. § 1010, sought a declaratory judgment that certain rules relating to their promotion, compensation, tenure, and the assignment of cases, promulgated by the Civil Service Commission pursuant to § 11, were invalid, and asked that their enforcement be enjoined. The District Court held that these four rules were invalid, interpreting § 11 as requiring: (1) that hearing examiners employed by a particular federal administrative agency must be placed in the same salary grade; (2) that a hearing examiner may not be promoted from one salary grade to another within the same agency; (3) that hearing examiners must be assigned to cases in mechanical rotation without regard to the difficulty or importance of particular cases or the competence or experience of particular examiners; and (4) that the employment of hearing examiners may not be terminated by reduction in force procedures where there is a lack of work or of funds with which to pay them. The District Court granted a permanent injunction against the enforcement of these four Civil Service rules, 104 F.Supp. 734. The Court of Appeals affirmed in a short per curiam opinion, one judge dissenting. 91 U.S.App.D.C. 164, 202 F.2d 312. We granted certiorari, 344 U.S. 853, 73 S.Ct. 93. 2 Prior to the passage of the Administrative Procedure Act, hearing examiners' tenure and status were governed by the Classification Act of 1923, as amended, 5 U.S.C.A. § 661 et seq. Under the Classification Act, as employees of an agency, their classification was determined by the ratings given them by the agency, and their compensation and promotion depended upon their classification. The examiners were in a dependent status. 3 With the rapid growth of administrative law in the last few decades, the role of these quasi-judicial officers became increasingly significant and controversial. Many of the regulatory powers which Congress has assigned federal administrative agencies can be exercised only after notice and hearing required by the Constitution or by statute. These agencies have such a volume of business, including cases in which a hearing is required, that the agency heads, the members of boards or commissions, can rarely preside over hearings in which evidence is required. The agencies met this problem long before the Administrative Procedure Act by designating hearing or trial examiners to preside over hearings for the reception of evidence. Such an examiner generally made a report to the agency setting forth proposed findings of fact and recommended action. The parties could address to the agency exceptions to the findings, and, after receiving briefs and hearing oral argument, the agency heads would make the final decision. 4 Many complaints were voiced against the actions of the hearing examiners, it being charged that they were mere tools of the agency concerned and subservient to the agency heads in making their proposed findings of fact and recommendations. A study by President Roosevelt's Committee on Administrative Management resulted in a report in 1937 recommending separation of adjudicatory functions and personnel from investigative and prosecution personnel in the agencies. The Attorney General's Committee on Administrative Procedure was appointed in 1939 to study the decisional process in administrative agencies, and the final report of this Committee was published in 1941. Both the majority and minority members of the Committee recommended that hearing examiners be made partially independent of the agency by which they were employed; the majority recommended hearing examiners be appointed for a term of seven years, and the minority recommended a term of twelve years. Although extensive hearings were held on bills to carry out the recommendations of this Committee, World War II delayed final congressional action on the subject. After the war, the McCarran-Sumners Bill, which became the Administrative Procedure Act, was introduced. The Senate Judiciary Committee Print of June 1945 reveals that at that time there was still great diversity of opinion as to how the status of hearing examiners should be enhanced. Several proposals were considered, and in the final bill Congress provided that hearing examiners should be given independence and tenure within the existing Civil Service system.2 5 Congress intended to make hearing examiners 'a special class of semi-independent subordinate hearing officers'3 by vesting control of their compensation, promotion and tenure in the Civil Service Commission to a much greater extent than in the case of other federal employees. Section 11 is as follows: 6 'Subject to the civil-service and other laws to the extent not inconsistent with this act, there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary for proceedings pursuant to sections 7 and 8, who shall be assigned to cases in rotation so far as practicable and shall perform no duties inconsistent with their duties and responsibilities as examiners. Examiners shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission (hereinafter called the Commission) after opportunity for hearing and upon the record thereof. Examiners shall receive compensation prescribed by the Commission independently of agency recommendations or ratins and in accordance with the Classification Act of 1923, as amended, except that the provisions of paragraphs (2) and (3) of subsection (b) of section 7 of said act, as amended, and the provisions of section 9 of said act, as amended, shall not be applicable. Agencies occasionally or temporarily insufficiently staffed may utilize examiners selected by the Commission from and with the consent of other agencies. For the purposes of this section, the Commission is authorized to make investigations, require reports by agencies, issue reports, including an annual report to the Congress, promulgate rates, appoint such advisory committees as may be deemed necessary, recommend legislation, subpena witnesses or records, and pay witness fees as established for the United States courts.' 7 An examination of § 11 shows that Congress retained the examiners as classified Civil Service employees but made inapplicable to them paragraphs (2) and (3) of subsection (b) of § 7 of the Classification Act and § 9 of that Act. These sections had made the examiners dependent upon the agencies' ratings for their classification. Freed from this dependence upon the agencies, the examiners were specifically declared to be otherwise under the other provisions of the Classification Act of 1923, as amended (now the Classification Act of 1949, 5 U.S.C. (Supp. V) § 1071 et seq., 5 U.S.C.A. § 1071 et seq.). 8 The position of hearing examiners is not a constitutionally protected position. It is a creature of congressional enactment. The respondents have no vested right to positions as examiners. They hold their posts by such tenure as Congress sees fit to give them. Their positions may be regulated completely by Congress, or Congress may delegate the exercise of its regulatory power, under proper standards, to the Civil Service Commission, which it has done in his case. 9 The question we have presented is whether the Civil Service Commission in the adoption of these rules followed or departed from the directions given it by § 11 of the Administrative Procedure Act. Did it implement the statute, or did it enlarge it? 10 Respondents do not contend that all hearing examiners should be classified in the same grade; they contend only that all hearing examiners in any one agency should be classified in the same grade. Petitioners argue that cases in a given agency are of varying levels of difficulty and importance and that the examiners hearing them must possess varying degrees of competency and types of qualifications. Petitioners point to the experience of the Civil Aeronautics Board where there are safety cases heard by one group of examiners and economic cases heard by another. The examiners assigned to the safety cases have pilots' certificates, while those assigned to the economic cases have completely different types of qualifications. Again, certain cases before the Interstate Commerce Commission involve relatively simple applications for extensions of motor carrier certificates, while others involve complicated and difficult railroad rate proceedings. Petitioners' argument indicates the need for specialization among examiners in the same agency to meet the diverse types of cases presented. 11 Proceeding under the provisions of the Classification Act, the Commission still classified the examiners according to their experience, skill, and ability,4 but without seeking or receiving rating of the examiners by the agencies and wholly independent thereof. A classification of the examiners into grades, with salaries appropriate to each grade, was set up by the Commission in each federal agency using examiners. This classification ranged from just one grade in several agencies to five grades in two agencies. Allocation of examiners in accordance with these classifications is provided for in Rule 34.105 which specifically states, 'Allocations shall be made independently of agency recommendations and ratings.' (Emphasis supplied.) 12 When the Commission classified the examiners according to the Classification Act, it was doing just what Congress directed it to do. As has been previously shown, § 11 specifically directs that 'Examiners shall receive compensation * * * in acccordance with the Classification Act of 1923, as amended,' with the exception provided in the statute and in the rules that this is to be done independently of agency influence. This contradicts the contention that Congress did not intend to permit classification of examiner positions by the Commission. The Act clearly provides, as Congress thought it did,6 for the allocation of positions within an agency to be made in various salary grades, which reflect the competence and experience of the person in the grade. Congress must have recognized the right of the Commission so to classify when it amended the Classification Act in 1949. At that time it specifically excluded thirty-two categories of government employees, but not examiners, 5 U.S.C. (Supp. V) § 1082, 5 U.S.C.A. § 1082, although the Commission then was classifying examiners under regulations similar to the present ones. 13 The District Court was critical of the specifications used by the Commission to classify the examiners as being 'nebulous and subjective'. (104 F.Supp. 740.) To classify the positions into the different grades from GS 11 to GS 15, the Commission used specifications as to job content as 'moderately difficult and important,' 'difficult and important,' 'unusually difficult and important,' 'exceedingly difficult and important,' and 'exceptionally difficult and important.' These specifications of necessity must be subjective. They are not based so much on evidence as on judgment. It is a discriminating judgment and one Congress committed to the experience and expertise of the Civil Service Commission, not the courts. The specifications evidently had practical content and meaning to Congress, as it repeatedly used similar phrases to describe relative methods in § 602 of the Classification Act of 1949, 5 U.S.C. (Supp. V) § 1112, 5 U.S.C.A. § 1112. 14 We come next to Rule 34.4 of the Commission relating to promotions,7 which is set forth in the margin. This rule was held invalid by the District Court, consistent with its view that there can be no classification of examiners and therefore there can be only one grade. Since we disagree with the court below as to the right of the Commission to classify examiners into grades within an agency and hold that such classification can be made, it must follow that promotions from one grade to another may be made. 15 But respondents also challenge the method by which promotions are made. The rule provides that the agency shall decide if there is a vacancy to be filled, and further that the agency shall decide if this vacancy is to be filled by promotion from among the present examiners. The examiners insist that thus the agency can control and coerce its examiners, and has an absolute veto power over promotions. But it is the Commission which chooses the examiner who shall receive the promotion. Respondents imagine all sorts of devious schemes by which the agencies shrewdly analyze their staffs to pick out which examiners would probably be chosen by the Commission for promotion, and then create vacancies for them as a reward for favorable decisions, or else fill vacancies from outside in order to discipline recalcitrant examiners. Respondents have not shown any actual examples of this, nor do they show that in such circumstances the Commission would not correct the situation. As a practical matter, the Commission must always turn to the agency for advice on the number of examiners needed at the various levels. The statute declares that 'THERE SHALL BE APPOINTED BY AND FOR EACH agency an many qualified and competent examiners as may be necessary'. (Emphasis supplied.) It then puts sufficient responsibility in the Commission's hands to ensure independent judgments from the examiners. It does not reduce the responsibility of the agency to see that it has a sufficient number of competent examiners to handle its business properly. 16 We come next to Rule 34.12, Rotation of Examiners. It provicdes: 17 'Insofar as practicable, examiners shall be assigned in rotatin to cases of the level of difficulty and importance that are normally assigned to positions of the salary grade they hold.' 5 CFR, 1951 Supp., § 34.12. 18 This rule purports to implement the provision of § 11 that examiners 'shall be assigned to cases in rotation so far as practicable'. (Emphasis supplied.) The respondents contend that this means mechanical rotation—that a case must be assigned to an examiner when his name comes up on the register, unless he is on leave or sick or disqualified or has not completed another assignment, etc. The lower courts accepted the respondents' view and held Rule 34.12 invalid. 19 The Commission gave to § 11's requirement of assignment of cases in rotation 'so far as practicable' consideration beyond the mere mechanics of bringing the next case on the docket opposite the top name on the register of available examiners. It gave consideration to the kind of case involved as well as the kind of examiner available. The Commission had classified the examiners on that basis, and it considered it was practicable to assign cases to examiners who were, according to their classification, qualified to handle the case at hand, having regard to the complexity and difficulty thereof, together with the experience and ability of the examiner available. If assigned by mechanical rotation, the value and use of such classification, which Congress had authorized, would be lost. To use the classification, it was not practicable to use mechanical rotation. Congress did not provide for the classification of examiners by the Commission, and then provide for the Commission to ignore such classification by a mechanical rotation. The rotation for practical reasons was adjusted to the classifications. This was an allowable judgment by the Commission as to what was practicable. 20 Finally, we come to the consideration of Rule 34.15,8 which provides for a reduction in force of examiners under circumstances governing the reduction in force of other federal employees. Respondents' contention, sustained by the courts below, is that the provision of § 11 that examiners 'shall be removable * * * only for good cause established and determined by the Civil Service Commission * * * after opportunity for hearing and upon the record thereof' gives them a lifetime position, subject to removal only for cause, and that the reduction in force procedures of the Commission have no application to them. 21 In this, we think the respondents are mistaken. Congress intended to provide tenure for the examiners in the tradition of the Civil Service Commission. They were not to be paid, promoted, or discharged at the whim or caprice of the agency or for political reasons. One of the individual examiners suing here was discharged by the Labor Board for lack of funds. The Commission has traditionally provided for a reduction in force for lack of funds, personnel ceilings, reorganizations, decrease of work, and similar reasons. 5 CFR, 1951 Supp., § 20.2(a). 22 Part of respondents' argument seems to direct itself to the point that it is the agency which makes the reduction in force. Rule 34.15 provides for the dropping of examiners with the lowest number of 'retention credits' after the agency finds that it must reduce its force. These credits are based on length of service and are beyond the power of the agency to affect. As with promotions, the Commission will always need to consult with the agency to ascertain that there is occasion for a reduction. Just as the statute leaves with the agency the duty to see that there are an adequate number of the right type of examiners, it leaves with the agency the responsibility to declare that there are a lesser number of examiners necessary at this time. It must be assumed that the Commission will prevent any devious practice by an agency which would abuse this Rule. The Rule provides for examiner appeal to the Commission, so there is opportunity to bring abuses to the Commission's attention. Also challenged is the statement in the Retention Preference Regulations for Reduction in Force (5 CFR, 1951, § 20.2) allowing reduction in force 'for other reasons.' This is obviously to provide for legitimate reasons for reduction not now foreseen, and it must be assumed that the Commission will not permit an agency to misuse it. 23 We find no evidence that Congress intended to make hearing examiners a class with lifetime employment, whether there was work for them to do or not, as contended by the respondents. A reduction in force for the reasons heretofore provided by the Civil Service Commission and removal of an examiner in accordance therewith is 'good cause' within the meaning of § 11. 24 The rules conform to the statute and carry out the purpose and intent9 of Congress, and they are therefore valid. 25 The judgment is reversed, and the cause is remanded to the District Court with directions to dismiss the complaint. 26 Reversed and remanded with directions. 27 Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS concur, dissenting. 28 I think these regulations should be held invalid and the judgment affirmed for substantially the reasons given in the opinion of Chief Judge Laws of the District Court for the District of Columbia. 104 F.Supp. 734. I wish to add a few words merely to emphasize certain aspects of that opinion. 29 The Administrative Procedure Act was designed to give trial examiners in the various administrative agencies a new status of freedom from agency control. Henceforth they were to be 'very nearly the equivalent of judges even though operating within the Federal system of administrative justice.'1 Agencies were stripped of power to remove examiners working with them. Henceforth removal could be effected only after hearings by the Civil Service Commission. That same Commission was empowered to prescribe an examiner's compensation independently of recommendations or ratings by the agency in which the examiner worked. And to deprive regulatory agencies of all power to pick particular examiners for particular cases, § 11 of the Act commanded that examiners be 'assigned to cases in rotation so far as practicable * * *.' I agree with the District Court and the Court of Appeals that the regulations here sustained go a long way toward frustrating the purposes of Congress to give examiners independence.2 30 Section 11 of the Administrative Procedure Act, as pointed out, provides that examiners may be removed 'only for good cause established' after hearings. One of the regulations here approved authorizes their removal when an agency finds it necessary to reduce its force. We have been pointed to no act of Congress which justifies this regulation. 31 Another regulation here approved permits the assignment of cases to examiners by 'classification' instead of by 'rotation' as § 11 requires. I do not agree with the Court that the Classification Act of 1923 or any other act of Congress authorizes the distinctions here made between examiners. In fact, the Administrative Procedure Act appears to contemplate that all examiners employed by a particular agency stand on equal footing in regard to service and pay. A central objective was to prevent agency heads from using powers over assignments to influence cases. Unlimited discretion in assignment would lead to subservient examiners, it was thought. But the effect of the Civil Service classifications is to restore the unlimited discretion existing before passage of the Administrative Procedure Act. 32 The distinctions depended upon to support the different classifications are so nebulous that the head of an agency is left practically free to select any examiner he chooses for any case he chooses. For the regulations permit the head of an agency to assign a particular case on the basis of whether the head of the agency believes it to be 'moderately difficult and important,' 'difficult and important,' 'unusually difficult and important,' 'exceedingly difficult and important,' or 'exceptionally difficult and important.' And administrative agencies are permitted to attribute choice of a particular examiner for a particular case to considerations whether 'complex legal, economic, financial, or technical questions or matters' are merely 'moderately complex,' 'fairly complex,' 'extremely complex,' 'exceptionally complex,' or just 'complex.' I think all these conceptualistic distinctions mean is that the congressional command for a nonagency controlled rotation of cases is buried under words. 1 Since the question was not raised before us, we do not rule on the standing of the Federal Trial Examiners Conference to be a party in this suit. 2 The Senate Report described the alternatives before the Congress and the purpose of § 11 as follows: 'The purpose of this section is to render examiners independent and secure in their tenure and compensation. The section thus takes a different ground than the present situation, in which examiners are mere employees of an agency, and other proposals for a completely separate 'examiners' pool' from which agencies might draw for hearing officers. Recognizing that the entire tradition of the Civil Service Commission is directed toward security of tenure, it seems wise to put that tradition to use in the present case. However, additional powers are conferred upon the Commission.' Administrtative Procedure Act—Legislative History, S.Doc. No. 248, 79th Cong., 2d Sess., p. 215. 3 Legislative History, p. 192. 4 Section 11 of the Administrative Procedure Act became effective June 11, 1947, one year after the Act's approval. The Commission accepted the examiner positions in the five different grades established by the agencies. After notice and hearing, regulations were promulgated on September 23, 1947. The Commission appointed a Board of Examiners from outside the Government to pass on the qualifications of incumbent status examiners, and to conduct a competitive examination for nonstatus incumbents and new applicants. When the results were announced in March 1949, 25.5% of the 212 status incumbents rated by the Board were found disqualified, but appeals were taken and ultimately all were found qualified. The action of the Board of Examiners was much criticized. See Thomas, The Selection of Federal Hearing Examiners: Pressure Groups and the Administrative Process (1950), 59 Yale L.J. 431, 433; Fuchs, The Hearing Examiner Fiasco Under the Administrative Procedure Act (1950), 63 Harv.L.Rev. 737, 767. Meanwhile, dispute had arisen as to what part the agencies had in the promotion of examiners—the existing regulations permitted the agency to select the examiner to be promoted subject to the retroactive approval of the Commission. On February 23, 1951, the Attorney General issued an opinion holding the promotion regulation invalid. 41 Op.Atty.Gen. No. 14. On September 21, 1951, the Commission promulgated the present regulations involved in this suit. 5 '34.10 Compensation. (a) Hearing examiner positions shall be allocated by the Commission in accordance with the regulations and procedures adopted by the Commission for allocations under the Classification Act of 1949. Allocations shall be made independently of agency recommendations and ratings. '(b) Hearing examiners shall receive within-grade salary advancements in accordance with Part 25 of this chapter: Provided, that the requirement of a satisfactory or better performance rating shall not apply.' 5 CFR, 1951 Supp., § 34.10. 6 'In the matter of examiners' compensation the section adds greatly to the Commission's powers and function. It must prescribe and adjust examiners' salaries, independently of agency ratings and recommendations. The stated inapplicability of specified sections of the Classification Act carries into effect that authority. The Commission would exercise its powers by classifying examiners' positions and, upon customary examination through its agents, shift examiners to superior classifications or higher grades as their experience and duties may require. The Commission might consult the agency, as it now does in setting up positions or reclassifying positions, but it would act upon its own responsibility and with the objects of the bill in mind.' Legislative History, p. 215 (Senate Report). See also pp. 280—281 (House Report). 7 '§ 34.4 Promotion—(a) From a hearing examiner position. When an agency decides that a hearing examiner position should be filled by the promotion of one of its hearing examiners, the Commission will select the examiner who is to be promoted. To be eligible to compete for promotion, hearing examiners must be serving in the agency, in the area of competition designated by the Commission, under absolute appointments, in grades lower than the position to be filled. In addition, hearing examaminers must meet the current recruiting standards (including the requirement of at least one year of experience of a level of difficulty comparable to that of the next lower grade). After examining the qualifications of all candidates, the Commission will select the best qualified. The hearing examiner selected by the Commission must be promoted not later than the beginning of the second pay period following the period in which the Commission's decision is reached, unless the Commission directs that the promotion be delayed pending adjudication of appeals. Once an agency elects to have a position filled by promotion and the Commission undertakes an examination to fill the position, the hearing examiner selected by the Commission must be promoted. '(b) From a position other than a hearing examiner position. When an agency desires to fill a vacancy in a hearing examiner position by the promotion of an employee who is serving in a position other than a hearing examiner position, with competitive status but without absolute status as a hearing examiner, it shall submit the name of the person to the Commission with an application form executed by him. The Commission will rate the qualifications of the applicant in accordance with the experience and training requirements of the open competitive examination (except the maximum age requirement) including an investigation of character and suitability. If on the basis of the rating assigned, the applicant would be within reach for certification if his name were on the open competitive register with the same rating, the Commission will approve the promotion; otherwise it will disapprove the request.' 5 CFR, 1951 Supp., § 34.4. 8 '§ 34.15 Reductions in force—(a) Retention credits. Retention credits for purposes of reductions in the force of hearing examiners are credits for length of service in determining retention order in each retention subgroup. They are computed by allowing one point for each full year of Federal Government service. '(b) Retention preference, classification. For the purpose of determining relative retention preference in reduction in force, hearing examiners shall be classified according to tenure of employment in competitive retention groups and subgroups in the manner prescribed in § 20.3 of the Retention Preference Regulations for Use in Reductions in Force (Part 20 of this chapter): Provided, That no distinction will be made in subgroups on the basis of a satisfactory or better performance rating as opposed to performance ratings of less than satisfactory. '(c) Status of hearing examiners who are reached in reduction in force. When a hearing examiner has been separated, furloughed, or reduced in rank or compensation because of a reduction in force, his name shall be placed at the top of the open competitive register for the grade in which he formerly served and for all lower grades. Where more than one hearing examiner is affected, the qualifications of the several hearing examiners shall be rated by the Commission and relative standing at the top of the register will be on the basis of these ratings. '(d) Appeals. (1) Any hearing examiner who feels that there has been a violation of his rights under the regulations governing reductions in force may appeal to the Commission (attention, Chief Law Officer) within 10 days from the date he received his notice of the action to be taken. '(2) Each appeal shall state clearly the grounds on which it is based, whether error in the records; violation of the rule of selection; restriction of the competitive area or level; disregard of a specified right under the law or regulations; or denial of the right to examine the regulations, retention register, or records. '(3) The agency in which the hearing examiner is employed shall be notified of the appeal and shall be allowed to file an answer thereto. The agency's answer must be submitted to the Commission's Chief Law Officer within 10 days from the date the agency is notified. '(4) Upon receipt of an appeal the Chief Law Officer will refer the case to the Personnel Classification Division for investigation. The Personnel Classification Division will make investigation and submit its report to the Chief Law Officer. If the investigation discloses violations of the rights of the appellant, the Chief Law Officer shall notify the agency as to the corrective action to be taken. The agency may appeal the decision of the Chief Law Officer within 10 days of its receipt to the Commission's Board of Appeals and Review. If the Board of Appeals and Review disagrees with the decision of the Chief Law Officer, it shall refer the case to the Commission's Chief Hearing Examiner for a hearing in accordance with subparagraph (5) of this paragraph. '(5) Appeals in which the Chief Law Officer cannot make initial finding in favor of the appellant shall be referred to the Commission's Chief Hearing Examiner for a hearing. The hearing shall be conducted in accordance with the provisions of the Administrative Procedure Act. The appellant, the agency concerned, and the Commission's Chief Law Officer may be represented at the hearing. Upon completion of the hearing the presiding hearing examiner shall transmit the entire file with his recommended decision to the Commission for decision. '(e) Retention preference regulations. The Retention Preference Regulations for Use in Reductions in Force (Part 20 of this chapter), except as modified by this section, shall apply to reductions in the force of hearing examiners.' 9 Respondents' brief and the dissenting opinion filed herein quote a sentence from a letter of September 6, 1951, from Senator McCarran, Chairman of the Senate Judiciary Committee, to Chairman Ramspeck of the Civil Service Commission, as follows: 'It was intended that (examiners) be very nearly the equivalent of judges even though operating within the Federal system of administrative justice.' S. Doc. No. 82, 82d Cong., 1st Sess., p. 9. We do not feel justified in regarding this sentence, taken out of context and written over five years after the Administrative Procedure Act was enacted, as illustrative of the intent of Congress at the time it passed the Act. 1 S.Doc. No. 82, 82d Cong., 1st Sess. 9. 2 Support of the foregoing statements as to the purpose of the Act can be found in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, and in the opinion of Chief Judge Laws, 104 F.Supp. 734.
12
345 U.S. 242 73 S.Ct. 600 97 L.Ed. 983 ALBERTSON et al.v.MILLARD, Attorney General et al. No. 384. Argued Feb. 2, 1953. Decided March 16, 1953. Mr. Ernest Goodman, Detroit, Mich., for appellants. Mr. Edmund E. Shepherd, Lansing, Mich., for appellees. PER CURIAM. 1 On april 17, 1952, the Governor of Michigan signed the Michigan Communist Control Bill. On April 22, 1952, the Communist Party of Michigan and William Albertson, its Executive Secretary, filed a complaint in the United States District Court or the Eastern District of Michigan. Sections 2—5, inclusive, and Section 7 of the Act were alleged to violate various provisions of the Federal Constitution. A declaratory judgment to that effect was sought, along with an injunction to prevent state officials and officers from enforcing the Act. A three-judge District Court, 106 F.Supp. 635, found the Act constitutional and an appeal was taken to this Court. 2 Section 5 of the Act requires the registration of Communists, the Communist Party and Communist front organizations, and Section 7 prevents them from appearing on any ballot in the State. 'Communist,' 'Communist Party,' and 'Communist front organization' are given a statutory meaning by the Michigan Legislature.1 Mich. Acts 1952, No. 117. 3 These definitions are challenged by the appellants as void for vagueness. The definition of a Communist as '* * * a member of the communist party, notwithstanding the fact that he may not pay dues to, or hold a card in, said party * * *' is said to be vague since once dues and cards are eliminated as criteria there are no readily apparent means of determining who is a member. As to the definition of the Communist Party as an organization '* * * substantially directed, dominated or controlled by the Union of Soviet Socialist Republics or its satellities' it is contended there are no standards as to what is a 'satellite.' In regard to the definition of both Communist Party and Communist front organization as an organization which '* * * in any manner advocates, or acts to further, the world communist movement' appellants point to the failure to define the 'world communist movement' as creating vagueness. The answers given to these and possibly other problems of construction and interpretation arising under the definitions in Sections 2—4 will determine the ultimate scope of the Act. 4 Interpretation of state legislation is primarily the function of state authorities, judicial and administrative. The construction given to a state statute by the state courts is binding upon federal courts. There has been no interpretation of this statute by the state courts. The absence of such construction stems from the fact this action in federal court was commenced only five days after the statute became law. 5 There is pending in the Circuit Court for Wayne County, Michigan, a bill seeking a declaratory judgment that the Act is unconstitutional, both on federal and state grounds. That action is being held in abeyance pending our mandate and decision in this case. 6 We deem it appropriate in this case that the state courts construe this statute before the District Court further considers the action. See Rescue Army v. Municipal Court of City of Los Angeles, 1947, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666; American Federation of Labor v. Watson, 1946, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; and Spector Motor Service v. McLaughlin, 1944, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101. 7 The judgment is vacated and he cause remanded to the District Court for the Eastern District of Michigan with directions to vacate the restraining order it issued and to hold the proceedings in abeyance a reasonable time pending construction of the statute by the state courts either in pending litigation or other litigation which may be instituted. 8 It is so ordered. 9 Reversed and remanded with directions. 10 Mr. Justice BLACK dissents. 11 Mr. Justice DOUGLAS, dissenting. 12 There doubtless will be instances where it is uncertain whether a particular person is a 'Communist' or whether a particular group is included in the 'Communist Party' as those terms are defined in the Michigan Act. But as I read this record there cannot be the slightest doubt that the Communist Party of Michigan is what it purports to be and that appellant Albertson, its Executive Secretary, is one of its members. In other words, it is plain beyond argument that the appellants are covered by the Michigan Act. 13 The case is therefore ripe for decision. It is not clouded with abstract questions. There are no ambiguities involving these appellants. The constitutional questions do not turn on any niceties in the interpretation of the Michigan law. The case is therefore unlike Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666, and its forebears where the nature of the constitutional issue would depend on the manner in which uncertain and ambiguous state statutes were construed. See especially American Federation of Labor v. Watson, 327 U.S. 582, 598, 66 S.Ct. 761, 768, 90 L.Ed. 873. Here there are but two questions: 14 (1) Can Michigan require the Communist Party of Michigan and its Executive Secretary to register? 15 (2) Can Michigan forbid the name of any Communist or of any nominee of the Communist Party to be printed on the ballot in any primary or general election in the state? 16 In my view no decision of the Michigan state courts can make those two issues any more precise or specific than the present case makes them. 1 'Sec. 2. A 'communist' is a person who: '(a) Is a member of the communist party, notwithstanding the fact that he may not pay dues to, or hold a card in, said party; or '(b) Knowingly contributes funds or any character of property to the communist party; or '(c) Commits or advocates the commission of any act reasonably calculated to further the overthrow of the government of the United States of America, the government of the state of Michigan, or the government of any political subdivision of either of them, by force or violence; or '(d) Commits or advocates the commission of any act reasonably calculated to further the overthrow of the government of the United States, the government of the state of Michigan, or the government of any political subdivision of either of them, by unlawful or unconstitutional means, and the substitution of a communist government or a government intended to be substantially directed, dominated or controlled by the Union of Soviet Socialist Republics or its satellities. 'Sec. 3. The 'communist party' is any organization which is substantially directed, dominated or controlled by the Union of Soviet Socialist Republics or its satellities, or which in any manner advocates, or acts to further, the world communist movement. 'Sec. 4. A 'communist front organization' is any organization, the members of which are not all communists, but which is substantially directed, dominated or controlled by communists or by the communist party, or which in any manner advocates, or acts to further, the world communist movement. The attorney general of the state of Michigan annually shall prepare and cause to be published a list of all such communist front organizations.'
89
345 U.S. 229 73 S.Ct. 603 97 L.Ed. 972 HEIKKILAv.BARBER et al. No. 426. Argued Feb. 4, 5, 1953. Decided March 16, 1953. Rehearing Denied April 27, 1953. See 345 U.S. 946, 73 S.Ct. 828. Messrs. Joseph Forer, Washington, D.C., Lloyd E. McMurray, San Francisco, Cal., for appellant. Mr. Robert W. Ginnane, Washington, D.C., for appellee. Mr. Justice CLARK delivered the opinion of the Court. 1 Heikkila is an alien whose deportation has been ordered by the Attorney General. He began this action against the District Director of the Immigration and Naturalization Service by a complaint seeking a 'review of agency action' as well as injunctive and declaratory relief. His main substantive claim is that § 22 of the Internal Security Act of 1950, 64 Stat. 1006, upon which the order was based, and which makes Communist Party membership per se ground for deportation, is unconstitutional. A three-judge District Court convened under 28 U.S.C. §§ 2282, 2284, 28 U.S.C.A. §§ 2282, 2284, dismissed the complaint without opinion. Together with the constitutional question, this appeal presents two important procedural questions: whether the validity of deportation orders may be tested by some procedure other than habeas corpus and, if so, whether the Commissioner of Immigration and Naturalization is an indispensable party to the action. 2 It is clear that prior to the Administrative Procedure Act habeas corpus was the only remedy by which deportation orders could be challenged in the courts.1 The courts have consistently rejected attempts to use injunctions, declaratory judgments and other types of relief for this purpose.2 Accordingly, in asserting the availability of judicial review of the type sought here, appellant relies primarily on § 10 of the Administrative Procedure Act,3 conceding that the question has not yet been decided by this Court. The Government contends that because s 19(a) of the Immigration Act of 19174 makes the decision of the Attorney General 'final' the underlying statute precludes judicial review and comes within the first exception to § 10. 3 Apart from the words quoted, the Administrative Procedure Act itself is silent on which 'statutes preclude judicial review'. Both the Senate and the House Committee Reports on the Act commented that 'Very rarely do statutes withhold judicial review.'5 And the House Report added that 'To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review.'6 The spirit of these statements together with the broadly remedial purposes of the Act counsel a judicial attitude of hospitality towards the claim that § 10 greatly expanded the availability of judicial review. However such generalities are not dispositive of the issue here, else a balance would have to be struck between those in the Committee reports and material in the debates which indicates inconsistent legislative understandings as to how extensively § 10 changed the prior law on judicial review.7 No easy answer is found in our decisions on the subject. Each statute in question must be examined individually; its purpose and history as well as its text are to be considered in deciding whether the courts were intended to provide relief for those aggrieved by administrative action. Mere failure to provide for judicial intervention is not conclusive; neither is the presence of language which appears to bar it.8 4 That the Attorney General's decisions are 'final' does not settle the question. The appellant properly emphasizes the ambiguity in that term. Read alone, it might refer to the doctrine requiring exhaustion of administrative remedies before judicial process cn be invoked. But 'final,' as used in immigration legislation, has a history, both in the statutes and in the decisions of this Court. It begins with § 8 of the Immigration Act of 1891, 26 Stat. 1084, which provided in part that 'All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury.' The appellant in Nisbimura Ekiu v. United States, 1892, 142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1146, argued that if § 8 was interpreted as making the administrative exclusion decision conclusive, she was deprived of a constitutional right to have the courts on habeas corpus determine the legality of her detention and, incidental thereto, examine the facts on which it was based. Relying on the peculiarly political nature of the legislative power over aliens, the Court was clear on the power of Congress to entrust the final determination of the facts in such cases to executive officers. Cf. Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586. Mr. Justice Gray found that § 8 was 'manifestly intended to prevent the question of an alien immigrant's right to land, when once decided adversely by an inspector, acting within the jurisdiction conferred upon him, from being impeached or reviewed, in the courts or otherwise, save only by appeal to the inspector's official superiors, and in accordance with the provisions of the act.' 142 U.S. at page 664, 12 S.Ct. at page 340. With changes unimportant here, this finality provision was carried forward in later immigration legislation. See, e.g., § 25 of the 1903 Act, 32 Stat. 1220, and § 25 of the 1907 Act, 34 Stat. 906. During these years, the cases continued to recognize that Congress had intended to make these administrative decisions nonreviewable to the fullest extent possible under the Constitution. Fong Yue Ting v. United States, 1893, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905. In Lem Moon Sing v. United States, 1895, 158 U.S. 538, 15 S.Ct. 967, 39 L.Ed. 1082, treating a comparable provision for the enforcement of the Chinese Exclusion Act, Mr. Justice Harlan observed that when Congress made the administrative decision final, 'the authority of the courts to review the decision of the executive officers was taken away.' 158 U.S. at page 549, 15 S.Ct. at page 971. And by 1901, Chief Justice Fuller was able to describe as 'for many years the recognized and declared policy of the country' the congressional decision to place 'the final determination of the right of admission is executive officers, without judicial intervention'. Fok Young Yo v. United States, 1902, 185 U.S. 296, 305, 22 S.Ct. 686, 690, 46 L.Ed. 917. See also the Japanese Immigrant case (Yamataya v. Fisher), 1903, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; Pearson v. Williams, 1906, 202 U.S. 281, 26 S.Ct. 608, 50 L.Ed. 1029; Zakonaite v. Wolf, 1912, 226 U.S. 272, 33 S.Ct. 31, 57 L.Ed. 218. 5 Read against this background of a quarter of a century of consistent judicial interpretation, § 19 of the 1917 Immigration Act, 39 Stat. 890 clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution.9 And the decisions have continued to regard this point as settled. Kessler v. Strecker, 1939, 307 U.S. 22, 34, 59 S.Ct. 694, 700, 83 L.Ed. 1082; Bridges v. Wixon, 1945, 326 U.S. 135, 149, 166, 167, 65 S.Ct. 1443, 1450, 1457, 1458, 89 L.Ed. 2103; Estep v. United States, 1946, 327 U.S. 114, 122, 123, note 14, 66 S.Ct. 423, 427, 90 L.Ed. 567; Sunal v. Large, 1947, 332 U.S. 174, 177, note 3, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982. Clearer evidence that for present purposes the Immigration Act of 1917 is a statute precluding judicial review would be hard to imagine. Whatever view be taken as to the breadth of § 10 of the Administrative Procedure Act, the first exception to that section applies to the case before us. The result is tht appellant's rights were not enlarged by that Act. Now, as before, he may attack a deportation order only by habeas corpus.10 6 The three Court of Appeals decisions to the contrary have taken the position that habeas corpus itself represented judicial review, albeit of a limited nature. United States ex rel. Trinler v. Carusi, 3 Cir., 166 F.2d 457; Kristensen v. McGrath, 86 U.S.App.D.C. 48, 179 F.2d 796; Prince v. Commissioner, 6 Cir., 185 F.2d 578. Under this approach, the finality of an administrative decision must be absolute before the first exception to § 10 can apply. Our difficulty with this position begins with the nature of the writ and ends with the language of § 10. Regardless of whether or not the scope of inquiry on habeas corpus has been expanded,11 the function of the courts has always been limited to the enforcement of due process requirements. To review those requirements under the Constitution, whatever the intermediate formulation of their constituents, is very different from applying a statutory standard of review, e.g., deciding on 'the whole record' whether there is substantial evidence to support administrative findings of fact under § 10(e). Yet, for all that appears, § 10(e) might be called into play as well as § 10(b) if habeas corpus were regarded as judicial review.12 In short, it is the scope of inquiry on habeas corpus that differentiates use of the writ from judicial review as that term is used in the Administrative Procedure Act. We hold that deportation orders remain immune to direct attack. 7 Heikkila suggests that Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320 (declaratory and injunctive relief), and McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173 (declaratory relief), were deviations from this rule. But neither of those cases involved an outstanding deportation order. Both Elg and Kristensen litigated erroneous determinations of their status, in one case citizenship, in the other eligibility for citizenship. Elg's right to a judicial hearing on her claim of citizenship had been recognized as early as 1922 in Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938. And Kristensen's ineligibility for naturalization was set up in contesting the Attorney General's refusal to suspend deportation proceedings under the special provisions of § 19(c) of the 1917 Immigration Act, as amended, 8 U.S.C.A. § 155(c). Heikkila's status as an alien is not disputed and the relief he wants is against an outstanding deportation order. He has not brought himself within Elg or Kristensen. 8 Appellant's Administrative Procedure Act argument is his strongest one. The reasons which take his case out of § 10 apply a fortiori to arguments based on the general equity powers of the federal courts and the Declaratory Judgments Act. 28 U.S.C. § 2201, 28 U.S.C.A. § 2201. See Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, 671—672, 70 S.Ct. 876, 878, 879, 94 L.Ed. 1194. Because we decide the judgment below must be affirmed on this procedural ground, we do not reach the other questions briefed and argued by the parties. 9 The rule which we reaffirm recognizes the legislative power to prescribe applicable procedures for those who would contest deportation orders. Congress may well have thought that habeas corpus, despite its apparent inconvenience to the alien, should be the exclusive remedy in these cases in order to minimize opportunities for repetitious litigation and consequent delays as well as to avoid possible venue difficulties connected with any other type of action.13 We are advised that the Government has recommended legislation which would permit what Heikkila has tried here. But the choice is not ours. 10 Affirmed. 11 Mr. Justice FRANKFURTER, whom Mr. Justice BLACK joins, dissenting. 12 Three Courts of Appeals have decided that under the Administrative Procedure Act an alien against whom a deportation order is outstanding may challenge the validity of that order by asking for a declaratory judgment. Since 1946, so they held, he has not been restricted to habeas corpus for the assertion of his rights, and therefore has not needed to wait till he is arrested for deportation. The careful opinions of Judge Goodrich for the Third Circuit in United States ex rel. Trinler v. Carusi, 166 F.2d 457, of Judge Bazelon for the District of Columbia Circuit in Kristensen v. McGrath, 86 U.S.App.D.C. 48, 179 F.2d 796, and of Judge McAllister for the Sixth Circuit in Prince v. Commissioner, 185 F.2d 578, make it abundantly clear why the Administrative Procedure Act should be treated as a far-reaching remedial measure, affording ready access to courts for those who claim that the administrative process, once it has come to rest, has disregarded judicially enforceable rights. The legislative materials concerning the Administrative Procedure Act—the reports of Committees and especially the authoritative elucidation of the measure by Chairman McCarran impressively support the direction of thought which underlies the decisions of the three Courts of Appeals. It is appropriate to say that in disagreeing with these decisions, this Court is aware that 'the broadly remedial purposes of the Act counsel a judicial attitude of hospitality towards the claim that § 10 greatly expanded the availability of judicial review.' The Court is inhibited from yielding to this 'attitude of hospitality' because the only way in which a deportation order may be challenged under the existing Immigration Act is habeas corpus, and because the scope of inquiry on habeas corpus is what it is. The Court concludes that this limited scope of inquiry brings the Immigration Act within the exception to the provision authorizing an 'action for a declaratory judgment' under § 10(b), in that the Immigration Act is one of the statutes that 'preclude judicial review'. 60 Stat. 243, 5 U.S.C.A. § 1009. In short, the Court gives the phrase 'judicial review' in § 10 a technical content and thereby disregards the vital fact that although § 19 of the Immigration Act of 1917, 39 Stat. 874, 889, as amended in 1940, 54 Stat. 1238, 670, 671, makes the decisions of the Attorney General 'final,' they are not finally final. As the hundreds of cases in the lower courts demonstrate, the Attorney General's actions are voluminously challenged and freuently set aside. No doubt the respect accorded to his findings is much more extensive than that accorded to findings of other agencies, or, to put it technically, 'the scope of inquiry' is more limited. But the decisive fact is that the findings of the Attorney General are subject to challenge in the courts and from time to time are upset, whatever the formulas may be by which what he has finally done is undone. 13 If anything is plain in the legislative history of the Administrative Procedure Act it is that the Congress was not concerned with formularies when it referred to statutes which 'preclude judicial review'. Senator McCarran was closely questioned about this matter and he had to satisfy Senators as to the very restricted meaning of this exception. He was not talking about 'review' in any technical sense. He was talking about the opportunity to go into court and question what an administrative body had done. And he referred to those rare cases when 'a statute denies resort to the court.' The bill, he said, 'would not set aside such statute.' And then he repeated in a paraphrase what he had meant—a denial of 'resort to the court'—in loose lawyers' language: 'If a statute denies the right of review, the bill does not interfere with the statute.' S.Doc.No. 248, 79th Cong., 2d Sess. 319. He had already made clear what his statement, 'the bill does not interfere with the statute,' meant by pointing out that the exception to ready access to the courts was limited to a 'law enacted by statute by the Congress of the United States, granting a review or denying a review. * * * We were not setting ourselves up to abrogate acts of Congress.' Id., at 311. 14 To allow a proceeding for a declaratory judgment to test the same issues that are open on habeas corpus is to abrogate no Act of Congress. It is, rather, to adopt, as between two permissible constructions of the Administrative Procedure Act, the one that evinces 'a judicial attitude of hospitality'. The Court shrinks from such a construction, with obvious reluctance, because it thinks it cannot adopt it without subjecting an order of deportation to new and unlimited judicial scrutiny. Surely this is a needless fear. A declaratory judgment action under § 10(b) can be limited—as it should be—to the scope of review appropriate to the extraordinary remedy of habeas corpus. The Administrative Procedure Act is not to be construed, and it is easy not to construe it so as to modify the Immigration Act and to allow courts to examine what the Attorney General has done beyond those substantive limits to which habeas corpus is now confined. But it is equally easy, and therefore I believe compelling, to construe the Administrative Procedure Act so as to loosen up the means by which the scrutiny provided for by the Immigration Act may be undertaken, to the extent that the technical conditions for habeas corpus, namely that a person must be in physical custody, can be dispensed with where a claim, capable of being vindicated through habeas corpus, is found. 15 The point is legally narrow but practically important. It means that one against whom a deportation order is outstanding but not executed, may at once move, by means of a declaratory judgment, to challenge the administrative process insofar as the substantive law pertaining to deportation permits challenge. Of course Congress may now explicitly afford this relief. It may do so without opening the sluices of 'review' in deportation cases. But it has already enabled us to do so under the Administrative Procedure Act. I think the Act is sufficiently supple not to require further legislation. The three opinions in the Courts of Appeals, to which reference has already been made, elaborate the grounds on which I would sustain the jurisdiction of the District Court. 1 Chief Justice Stone, dissenting (on other grounds), in Bridges v. Wixon, 1945, 326 U.S. 135, 167, 65 S.Ct. 1443, 1458, 89 L.Ed. 2103. 2 Fafalios v. Doak, 60 App.D.C. 215, 50 F.2d 640; Poliszek v. Doak, 61 App.D.C. 64, 57 F.2d 430; Kabadian v. Doak, 62 App.D.C. 114, 65 F.2d 202; Darabi v. Northrup, 6 Cir., 54 F.2d 70. See also Impiriale v. Perkins, 62 App.D.C. 279, 66 F.2d 805; Azzollini v. Watkins, 2 Cir., 172 F.2d 897. 3 'Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion— '(a) RIGHT OF REVIEW.—Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof. '(b) FORM AND VENUE OF ACTION.—The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law. '(c) REVIEWABLE ACTS.—Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review. Any preliminary, procedural, or intermediate agency action or ruling not directly reviewable shall be subject to review upon the review of the final agency action. * * * '(e) SCOPE OF REVIEW.—So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error.' 60 Stat. 243, 5 U.S.C.A. § 1009. 4 'In every case where any person is ordered deported from the United States under the provisions of this Act, or of any law or treaty, the decision of the Attorney General shall be final.' 39 Stat. 889, as amended, 54 Stat. 1238, 8 U.S.C.A. § 155(a). We do not consider the 1952 Act, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq., which took effect after Heikkila's complaint was filed. 5 Legislative History, S. Doc. No. 248, 79th Cong., 2d Sess., 212, 275. 6 Legislative History 275. 7 Legislative History 311, 325. 8 Ludecke v. Watkins, 1948, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 881; American Federation of Labor v. National Labor Relations Board, 1940, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347; Switchmen's Union v. National Mediation Board, 1943, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61; Stark v. Wickard, 1944, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733. 9 The Senate Committee said, 'The last (finality) provision, while new in this particular location, is not new in the law, the courts having repeatedly held that in the cases of aliens arrested for deportation, as well as in the cases of those excluded at our ports, the decision of the administrative officers is final, and the Supreme Court having in several decisions regarded the case of the alien arrested for deportation as practically a deferred exclusion (The Japanese Immigrant Case, 189 U.S. 86, (23 S.Ct. 611, 47 L.Ed. 721); Pearson v. Williams, 202 U.S. 281, 26 S.Ct. 608, 50 L.Ed. 1029).' S. Rep. No. 352, 64th Cong., 1st Sess., Vol. 2, 16. 10 We need not consider whether the same result follows from the first part of § 10(b), 'The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute * * *.' 11 Compare Yamataya v. Fisher, 1903, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721, with United States ex rel. Vajtauer v. Commissioner, 1927, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560, and Bridges v. Wixon, 1945, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103. 12 The lower courts have split on this question and we express no opinion on it now. Yiakoumis v. Hall, D.C., 83 F.Supp. 469; U.S. ex rel. Lindenau v. Watkins, D.C., 73 F.Supp. 216. 13 See Paolo v. Garfinkel, 3 Cir., 200 F.2d 280.
12
345 U.S. 192 73 S.Ct. 585 97 L.Ed. 946 LOCAL UNION NO. 10, UNITED ASS'N OF JOURNEYMEN PLUMBERS AND STEAMFITTERS OF UNITED STATES AND CANADA OF AMERICAN FEDERATION OF LABOR, et al.v.GRAHAM et al. No. 86. Argued and Submitted Dec. 8, 1952. Decided March 16, 1953. Mr. Herbert S. Thatcher, Washington, D.C., for petitioners. Mr. Richmond Moore, Jr., Richmond, Va., for respondents. Mr. Justice BURTON delivered the opinion of the Court. 1 The basic question here is whether the Commonwealth of Virginia, consistently with the Constitution of the United States, may enjoin peaceful picketing when it is carried on for purposes in conflict with the Virginia Right to Work Statute.1 A question also before us is whether the record in this case justifies the finding, made below, that the picketing was for such purposes. We answer each in the affirmative. 2 A bill of complaint was filed September 25, 1950, in the Law and Equity Court of the City of Richmond, Virginia, by respondents, doing a general contracting business there. They named as defendants Local Union No. 10, United Association of Journeymen, Plumbers and Steamfitters of the United States and Canada of the American Federation of Labor, here called the Plumbers Union, three other local unions, the business agents of each of the unions and the Richmond Building & Construction Trades Council.2 The complaint alleged in substance that respondents had begun work under their contract with the City of Richmond to build the George Washington Carver School, that early completion of the school was urgent, that respondents had made contracts with all necessary subcontractors, that some of the subcontractors employed only union labor while others employed nonunion as well as union labor, that in July certain of the defendants had requested that all nonunion labor on the project be laid off and had said that, unless that were done, 'every effort would be made to prevent any union labor employed * * * on that project from continuing work thereon,' that on September 25 certain of the defendants had picketed the project, carrying a sign reading 'This Is Not a Union Job. Richmond Trades Council,' that, as a result of such picketing, union members on the job had refused to continue to work there and that, therefore, the project had 'slowed to a standstill.' The complaint further alleged that the foregoing demands sought to induce respondents to take action which would subject them to criminal and civil liabilities under the Virginia Right to Work Statute and to break respondents' contracts with such of their subcontractors as did not employ all union labor. Finally, it alleged that the objectives of defendants in making such demands and conducting such picketing were to prevent nonunion employees from working on the project. On the strength of such allegations, the trial court granted respondents the temporary injunction they sought and the picketing ceased. A motion to dissolve the injunction was denied, an answer was filed, depositions were taken and the temporary injunction was continued in effect until July 17, 1951. On that date, the trial court made the injunction permanent. The court rendered no opinion but included the following statement in its decree: 3 '(I)t appearing to the Court that the picketing complained of was conducted and carried on by the defendants, except for those defendants hereinafter noted, and for aims, purposes and objectives in conflict with the provisions of the Right to Work laws of the State of Virginia and, therefore, illegal, that a permanent injunction is necessary to prevent irreparable harm and damage to the complainants, and that complainants have already been damaged to the extent of One Hundred and Ninety ($190.00) Dollars, the Court doth so find; * * *.' (Emphasis supplied.)3 4 January 23, 1952, the Supreme Court of Appeals of Virginia, also without opinion, refused to hear an appeal but said in its order 'the court being of opinion that the said decrees (of the trial court) are plainly right, doth reject said petition and refuse said appeal and supersedeas, the effect of which is to affirm the decree of the said law and equity court.' Because of the importance of the issue in the practical administration of labor law, we granted certiorari. 344 U.S. 811, 73 S.Ct. 16. Respondents filed no brief here other than that in opposition to the petition for certiorari and submitted their case without oral argument. 5 A few days before our grant of certiorari, the Supreme Court of Appeals of Virginia, in another case, reached a result which petitioners claim is in conflict with its judgment in the instant case. Painters & Paperhangers Local Union No. 1018 v. Rountree Corp., 194 Va. 148, 72 S.E.2d 402. We find that decision helpful as upholding the constitutionality of the Right to Work Statute and interpreting its meaning, but we do not find it inconsistent with the result below. See also, Edwards v. Commonwealth of Virginia, 191 Va. 272, 60 S.E.2d 916; Finney v. Hawkins, 189 Va. 878, 54 S.E.2d 872; American Federation of Labor v. American Sash Co., 335 U.S. 538, 69 S.Ct. 258, 260, 93 L.Ed. 222; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212. 6 In the Rountree case, 194 Va. at 154, 72 S.E.2d at 405, the highest court of Virginia holds that the Statute does not prohibit peaceful picketing 'unless * * * for an unlawful purpose.' It adds that 'a purpose to compel the complainants to discharge the non-union painters or to compel the painters to join the union as a condition of their continued employment' would be an unlawful purpose, but it fails to find the existence of such a purpose. On the other hand, in the instant case, the same court states that the injunctive decrees of the trial court 'are plainly right.' It thereby sustains the trial court's finding that 'the picketing complained of was * * * carried on by the defendants * * * for aims, purposes and objectives in conflict with the provisions of the Right To Work laws of the State of Virginia * * *.' The Rountree case thus reflects an instance of picketing so conducted as not to be in violation of the Right to Work Statute, whereas the facts in the instant case reflect conduct that is in conflict with the provisions of that Statute. However innocent the picketing appeared while in progress, the Virginia courts found that it was combined with conduct and circumstances occurring before and during the picketing that demonstrated a purpose on the part of petitioners that was in conflict with the Right to Work Statute. 7 In a case of this kind, we are justified in searching the record to determine whether the crucial finding by the state courts had a reasonable basis in the evidence.4 The record consists of the depositions of nine witnesses taken six to nine months after the events described. There is some conflict in the testimony as to what took place July 27, 28, and September 25, 26. The record contains, however, ample grounds for sustaining the crucial findings of the trial court. Those grounds appear particularly in the testimony of respondent O. J. Graham and his general manager, J. Q. Acree, as to what was said during their conversation, on July 28, 1950, with J. F. Joinville, business agent of the Plumbers Union and president of the Richmond Building & Construction Trades Council, together with Henry Cochran, business agent of the Engineers Union and Secretary and Treasurer of the same Trades Council.5 8 It is undisputed that the picketing lasted from 8 a.m., September 25, until stopped by injunction the following noon. The picketing was peaceful in appearance. There usually was but one picket and there never were more than two pickets on duty at a time. There was no violence and no use of abusive language. Each picket walked up and down the sidewalk adjoining the project carrying a sign bearing substantially the language quoted in the complaint. September 25, the picketing was done consecutively by the respective business agents of the Painters, Plumbers, Plasterers and Ironworkers unions. The premises picketed were frequented by few except the construction workers. The project was in its earliest stages. Before the picketing began, there were not more than fourteen men at work. Of these, three union carpenters worked about one hour on September 25. They left the project when the picketing began and returned a few days after the picketing stopped. Two union ironworkers or rodmen gave notice on the preceding Saturday that picketing was to begin Monday, September 25, and that, therefore, they would not come to work. They never returned and the contractor was delayed several days while seeking to replace them. A nonunion plumber was assisted by a helper, who, oddly enough, belonged to a printers union. The plumber did not stop work but his helper left when the picketing began. 9 The others present were six or seven laborers whose status as union men was not clear. They did not quit but the work on the project as a whole came to a substantial standstill during the week of September 25, because the principal activity then called for was that of pouring concrete which required the services of rodmen as well as those of laborers. 10 The effect of the picketing was confirmatory of its purpose as found by the trial court. Petitioners here engaged in more than the mere publication of the fact that the job was not 100% union. Their picketing was done at such a place and in such a manner that, coupled with established union policies and traditions, it caused the union men to stop work and thus slow the project to a general stand-still. Such conduct, furthermore, was conditioned upon the fact that some of the work on this job, particularly the plumbing, was being done by a subcontractor who employed nonunion labor, whereas Joinville had demanded of the general contractor that the job be 'one hundred per cent union.' 11 The policy of Virginia which is expressed in its Right to Work Statute is summarized as follows by its highest court: 12 'It provides in substance that neither membership nor non-membership in a labor union shall be made a condition of employment; that a contract limiting employment to union members is against public policy; and that a person denied employment because he is either a member of a union or not a member of a union shall have a right of action for damages.' Finney v. Hawkins, 189 Va. 878, 880, 54 S.E.2d 872, 874. 13 Based upon the findings of the trial court, we have a case in which picketing was undertaken and carried on with at least one of its substantial purposes in conflict with the declared policy of Virginia. The immediate results of the picketing demonstrated its potential effectiveness, unless enjoined, as a practical means of putting pressure on the general contractor to eliminate from further participation all nonunion men or all subcontractors employing nonunion men on the project. 14 Assuming the above conclusions to have been established, petitioners still contend that the injunction in this case was inconsistent with the Fourteenth Amendment to the Constitution of the United States. On the reasoning and authority of our recent decisions, we reaffirm our position to the contrary. Building Service Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045; International Brotherhood of Teamsters etc., Union v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995; Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Thomas v. Collins, 323 U.S. 516, 537—538, and 543—544, 65 S.Ct. 315, 325 326, 328—329, 89 L.Ed. 430 (concurring opinion); Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 776—777. 62 S.Ct. 816, 819 820, 86 L.Ed. 1178 (concurring opinion); Carpenters Union v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143; Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; Thornhill v. State of Alabama, 310 U.S. 88, 103—104, 60 S.Ct. 736, 744—745, 84 L.Ed. 1093; Senn v. Tile Layers Union, 301 U.S. 468, 479—481, 57 S.Ct. 857, 862—863, 81 L.Ed. 1229. See also, International Brotherhood of Electrical Workers v. National Labor Relations Board, 341 U.S. 694, 705, 71 S.Ct. 954, 960, 95 L.Ed. 1299. 15 The judgment of the Supreme Court of Appeals of Virginia accordingly is affirmed. 16 Affirmed. 17 Mr. Justice BLACK dissents. 18 Mr. Justice DOUGLAS, dissenting. 19 If this union used the coercive power of picketing to force the contractor to discharge the nonunion men who were employed on the job, Virginia could issue the injunction. For it is within the police power of the state to keep opportunities for work open to both nonunion and union men. See Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Building Service Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045. But if the union did no more than advertise to union men and union sympathizers that nonunion men were employed on the job, the picketing would be privileged. 20 Picketing is a form of free speech—the workingman's method of giving publicity to the facts of industrial life. As such it is entitled to constitutional protection. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. No court would be entitled to prevent the dissemination of the news 'This is not a Union Job,' whether it be by radio, by newspaper, by pamphlets, or by picketing. A picket carrying that sign would be proclaiming to all union men to stay away. Yet as Mr. Justice Minton, dissenting in International Teamsters Union v. Hanke, 339 U.S. 470, 481, 482, 70 S.Ct. 773, 779, 94 L.Ed. 995, stated, peaceful picketing when used 'as an instrument of publicity' is a form of speech protected by the First and Fourteenth Amendments. It is entitled to that protection though it incites to action. For it is the aim of most ideas to shape conduct.1 21 The line between permissible and unlawful picketing will therefore often be narrow or even tenuous. A purpose to deprive nonunion men of employment would make the picketing unlawful; a purpose to keep union men away from the job would give the picketing constitutional protection. The difficulty here is that we have no findings of fact. We have only the recitation in the decree that the picketing conflicted with the Virginia statute. 22 There is a dispute in the testimony as to the purpose of the picketing. The contractor testified that the aim was to coerce him to replace nonunion men with union men. The union official testified unequivocally that that was not the purpose, that the aim was to inform union men that nonunion men were on the job.2 Perhaps the trial judge believed the contractor. Perhaps he deemed it irrelevant to resolve the conflict. Certainly I cannot resolve it from this cold record. I believe the case should be remanded for specific findings. We spoke in Thornhill v. State of Alabama, supra, 310 U.S. at page 105, 60 S.Ct. at page 745, 84 L.Ed. 1093, of the importance of a 'narrowly drawn' picketing statute, of the danger of one that condemned picketing indiscriminately. The same dangers are inherent in cases where there are no findings and yet where the unlawful purpose must be found before the picketing can be enjoined. If Virginia is to enjoin this form of free speech, I would require her to show precisely the reasons for it. Unless we are meticulous in that regard, great rights will be lost by the absence of findings, by the generality of findings, or by the vagueness of decrees. There is more than suspicion that that has happened here. For the decree permanently enjoins defendants 'from carrying on their picketing or other activities in front of or around' the construction site. This decree was not 'tailored to prevent a specific violation' of state law. Building Service Union v. Gazzam, supra, 339 U.S. at page 541, 70 S.Ct. at page 789, 94 L.Ed. 1045.3 It is a broadside against all picketing, the kind of general assault condemned by Thornhill v. State of Alabama, supra. It illustrates the evil consequences that flow from a failure to be utterly painstaking in isolating the precise evils in picketing which the state may regulate. 1 '1. Section 1. It is hereby declared to be the public policy of Virginia that the right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. 'Section 2. Any agreement or combination between any employer and any labor union or labor organization whereby persons not members of such union or organization shall be denied the right to work for said employer, or whereby such membership is made a condition of employment or continuation of employment by such employer, or whereby any such union or organization acquires an employment monopoly in any enterprise, is hereby declared to be against public policy and an illegal combination or conspiracy. 'Section 3. No person shall be required by an employer to become or remain a member of any labor union or labor organization as a condition of employment or continuation of employment by such employer. 'Section 4. No person shall be required by an employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment. 'Section 5. No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees or other charges of any kind to any labor union or labor organization. 'Section 6. Any person who may be denied employment or be deprived of continuation of his employment in violation of sections three, four or five or of one or more of such sections, shall be entitled to recover from such employer and from any other person, firm, corporation or association acting in concert with him by appropriate action in the courts of this Commonwealth such damages as he may have sustained by reason of such denial or deprivation of employment. 'Section 7. The provisions of this act shall not apply to any lawful contract in force on the effective date hereof but they shall apply in all respects to contracts entered into thereafter and to any renewal or extension of an existing contract.' Va. Acts, Extra Session, 1947, c. 2, Va.Code 1950, §§ 40—68 to 40—74, inclusive. See also, recognition of such state legislation in the Taft-Hartley Act: 'Sec. 14. * * * '(b) Nothing in this Act (National Labor Relations Act, as amended) shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.' 61 Stat. 151, 29 U.S.C. (Supp. V) § 164(b), 29 U.S.C.A. § 164(b). 2 The unions named were Local Union No. 1018, Brotherhood of Painters, Decorators and Paperhangers of America; Local Union No. 64, Cement Finishers and Operative Plasterers International Association; and Local Union No. 147, International Union of Operating Engineers, each affiliated with the American Federation of Labor. 3 The decree dismissed the complaint against Local Union No. 147 and its business agent, but enjoined the remaining defendants 'from interfering with, molesting or otherwise carrying on their picketing or other activities in front of or around the site of construction of George Washington Carver School in the City of Richmond, Virginia.' Petitioners now object to the breadth of the terms of the injunction. That objection was not presented in their petition for certiorari and is not considered here. 4 '* * * it is of prime importance that no constitutional freedom, least of all the guarantees of the Bill of Rights, be defeated by insubstantial findings of fact screening reality. That is why this Court has the ultimate power to search the records in the state courts where a claim of constitutionality is effectively made. * * * '* * * We have not only his (the master's) findings but his findings authenticated by the state of Illinois speaking through her supreme court. We can reject such a determination only if we can say that it is so without warrant as to be a palpable evasion of the constitutional guarantee here invoked.' Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 293, 294, 61 S.Ct. 552, 555, 85 L.Ed. 836. 5 For example, O. J. Graham testified: 'A. * * * he (Joinville) finally got into the question of this particular job at the George Washington Carver School and Mr. Joinville said he wanted us to make it one hundred per cent union job and I told him we couldn't do that, that we had already let sub-contracts that were union and non-union and we weren't making any distinction between the two, generally speaking, unless something was wrong or unless we didn't think the sub-contractor could perform like we wanted him to; that we let the contract to the lowest bidder, whether he was union or non-union, and Mr. Joinville then said about this plumbing and heating contract he wanted me to cancel the contract with Talley and I told him we couldn't do that, that a contract with a non-union man was just as valid as one with a union man, and that led on into a discussion of the general policy of the Richmond Trades Council. 'The way that came up was I asked Mr. Joinville why pick out this job, that a number of other contractors were operating the same as we were now and we had been very friendly with the unions, hand't had any trouble with them and sometime past we had worked probably ninety per cent union on some jobs and our relations up to this time had been very good. 'Well,' he said, 'from now on, we are not going to permit the things we have been permitting in the past and if a job isn't one hundred per cent union, the union labor is not going to work on it; it has got to be one hundred per cent union.' If it wasn't—talking about this particular job together with any other jobs in the future, not only of ours, but other people's as well, that they would just have to take what came from the union as a result of not being one hundred per cent union, and we did discuss to some degree the right-to-work law and the effect that it had had or should have on labor and I told him I didn't see how we could comply with the law and make any job one hundred per cent union. 'Well,' he said, 'nobody else is paying any attention to the right-to-work law; I don't see any reason why Graham Brothers should be so concerned about it." 1 I have expressed elsewhere my views concerning the line between sanctity of speech and the unlawful use of the coercive power of unions. See Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 775—777, 62 S.Ct. 816, 819—820, 86 L.Ed. 1178; Thomas v. Collins, 323 U.S. 516, 543—544, 65 S.Ct. 315, 328—329, 89 L.Ed. 430. 2 Mr. Joinville testified: 'Q. Now Mr. Graham has alleged that you came to talk with him as business representative for Local No. 10 and that you renewed your request of July 27, 1950, that all non-union labor on the job project be laid off or discharged. Did you make that request? A. No. 'Q. Were you interested in all the non-union labor on the project being laid off? A. I was only interested in furthering the interests of union labor. As to the standing and who was on the job and what crafts, I didn't know and didn't know until I talked to Mr. Graham and got it from him direct. 'Q. Did you in your conversation with him request him to lay off or fire or discharge anybody? A. No. Mr. Graham definitely told me he intended to go through with it and I asked him to give his contracts to some of the boys—some of the contractors whom he had let his contracts to in the past. He said definitely he had made commitment to Mr. Talley and he intended to hold Mr. Talley to his commitment and see that Mr. Talley completed that job, and knowing the contracting business, I know that. 'Q. You have testified that you went to see him (Mr. Graham) for the purpose of getting him to use some of your union subcontractors, is that correct? A. That is my job, to promote subcontractors and my membership wherever possible. 'Q. He refused to do just that, didn't be? A. He said he had already let the contract to a non-union,—as I assume, I had no relationship with him—to a contractor by the name of Talley and he had no intention of violating that contract with Talley, and I agreed with him. 'Q. Then he denied your men the right to work for him, didn't he? A. He definitely did. 'Q. Mr. Joinville, did Mr. Graham refuse to employ any of your local union men? A. He definitely took the stand he wouldn't have anyone but Talley on that job. 'Q. Did you ask Mr. Graham to cancel his contract with Talley? A. No. I have been in this construction business long enough and business agent for twenty some years and I know when a contract is signed and delivered nobody cancels them. 'Q. That would have nothing to do with the State Law, would it? A. That is right.' 3 See also Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985, where we upheld the validity of an injunction which restrained the defendants from 'picketing * * * for the purpose of compelling plaintiff to do any of the following acts: '(1) the selective hiring of negro clerks, such hiring to be based on the proportion of white and negro customers who patronize plaintiff's stores; * * *.' This purpose was declared unlawful by the California courts and we sustained the injunction directed against that unlawful purpose. Cf. Hotel & Restaurant Employees' Local v. Wisconsin Board, 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946, involving an administrative order prohibiting picketing. It was undisputed that the picketing had erupted into violence. We accepted the Wisconsin court's determination that the order was directed only against such unlawful conduct and did not reach out to strike down peaceful picketing for a lawful purpose.
67
345 U.S. 153 73 S.Ct. 609 97 L.Ed. 918 UNITED STATES ex rel. CHAPMAN, Secretary of the Interior,v.FEDERAL POWER COMMISSION et al. VIRGINIA REA ASS'N et al. v. FEDERAL POWER COMMISSION et al. Nos. 28, 29. Argued Oct. 22, 1952. Decided March 16, 1953. Mr. Gregory Hankin, Washington, D.C., for Oscar L. Chapman. Mr. Robert Whitehead, Lovingston, Va., for Virginia REA Ass'n. Mr. Bradford Ross, Washington, D.C., for respondent Federal Power Comm. Mr. T. Justin Moore, Richmond, Va., for respondent Virginia Electric & Power Co. Messrs. Charles F. Rouse, Raleigh, N.C., David W. Robinson, J., Washington, D.C., for respondent Carolina Power & Light Co. Mr. Herbert B. Cohn, New York City, for respondent Appalachian Electric Power Co. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 In these two cases, the Secretary of the Interior and an association of nonprofit rural electric cooperatives have challenged the authority of the Federal Power Commission to grant to the respondent power company, VEPCO, a license to construct a hydroelectric generating station at Roanoke Rapids, North Carolina. They claim that Congress, by approving a comprehensive plan set out in the Flood Control Act of 1944 for improvement of the Roanoke River Basin, has withdrawn all eleven sites proposed for development in the plan, including Roanoke Rapids, from the licensing jurisdiction of the Commission and has reserved them for public construction. The underlying premise, that the plan approved by Congress presupposed federal development of all sites included in the plan, also underlies petitioners' other main contention here, that the Commission's concurrence in the plan constituted a determination by the Commission that the development of these water resources should be undertaken by the United States itself. Such a determination, they say, requires the Commission under § 7(b) of the Federal Power Act, 41 Stat. 1067, as amended, 49 Stat. 842, 16 U.S.C. § 800(b), 16 U.S.C.A. § 800(b), to make investigations and submit its findings together with appropriate recommendations to Congress and in any event bars the Commission from approving applications for private construction of the project. Petitioners unsuccessfully raised these contentions, along with attacks on the Commission's findings not pressed here, before the Court of Appeals for the Fourth Circuit, which denied their petitions to set aside the Commission's order granting a license to VEPCO. United States v. Federal Power Comm., 191 F.2d 796. We granted certiorari, 343 U.S. 941, 72 S.Ct. 1034, 96 L.Ed. 1346. The cases present questions of importance in that they involve a conflict of view between two agencies of the Government having duties in relation to the development of national water resources. Determination of the issues may affect a substantial number of important potential sites for the development of hydroelectric power. Cf. Rules Sup.Ct. 38(5)(b), 28 U.S.C.A. 2 Both here and in the court below, petitioners' standing to raise these issues has been questioned. The Secretary of the Interior points to his statutory duty to act as sole marketing agent of power developed at public hydroelectric projects and not required for the operation of the project; § 5 of the Flood Control Act of 1944 directs him to transmit and dispose of such power in a manner calculated to 'encourage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles'. 58 Stat. 890, 16 U.S.C. § 825s, 16 U.S.C.A. § 825s. This provision, it is said, announces a congressional policy for the guidance of the Secretary that would be disturbed by the respondent company's plan; thus a specific interest of the Secretary, in addition to his more general duties relating to the conservation and utilization of the Nation's water resources, is said to be adversely affected by the Commission's order. The REA Association, an association of cooperatives, asserts that, as an organization of consumers entitled, along with 'public bodies,' to a preference in sales by the Secretary under § 5, it has a substantial interest in the development of low-cost power at the Roanoke Rapids site and consequently in the kind of instrumentality, public or private, to which power development at this site is committed. Respondents say, however, that decisions of policy in the construction of power projects have been entrusted to the Commission, or at most also to the Secretary of the Army, under whom the Corps of Engineers performs its statutory functions of making surveys and constructing public works, and that the interests of petitioners arise only after a public project has been constructed and the Secretary of the Army has determined that there is excess power to be distributed and sold. 3 We hold that petitioners have standing. Differences of view, however, preclude a single opinion of the Court as to both petitioners. It would not further clarification of this complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations, to set out the divergent grounds in support of standing in these cases. 4 Petitioners' main contention, that Congress has, by a series of enactments to be construed as part of an evolving assumption by the Federal Government of comprehensive authority over navigable waters, reserved the Roanoke Rapids site for public development and so has placed it beyond the licensing power of the Federal Power Commission, requires us to consider with some particularity the steps by which plans for the Roanoke Rapids project have unfolded. Petitioners' contention reduces itself to the claim that the authority of the agency to which Congress has delegated the responsibility for safeguarding the public interest in the private development of power resources has been revoked pro tanto by congressional action as to this particular site. 5 In 1927, the Army Engineers were authorized to make a specific survey of the Roanoke River by § 1 of the Rivers and Harbors Act, 44 Stat. 1010, 1015, which 'adopted and authorized' enumerated 'works of improvement' including 'Surveys in accordance with' H.R.Doc.No. 308, 69th Cong., 1st Sess. (1926). That document, a milestone in the development of integrated federal planning for the use of the Nation's water resources, had recommended surveys of a large number of streams throughout the country, including the Roanoke River, 'either for the preparation of plans for improvement to be undertaken by the Federal Government alone or in connection with private enterprise, or to secure adequate data to insure that waterway developments by private enterprise would fit into a general plan for the full utilization of the water resources of a stream.' H.R.Doc.No. 308, 69th Cong., 1st Sess. 4. The detailed survey of the Roanoke River was transmitted to Congress in 1934; in it the Chief of Engineers stated that a comprehensive plan for navigation and power, flood control or irrigation 'is not economically justifiable at the present time,' H.R.Doc.No. 65, 74th Cong., 1st Sess. 2 (1935), and concurred in the judgment of the investigating engineer that '(t)here is no justification for any Federal expenditures for either flood control or power.' Id., at 53; cf. id., at 14—15. 6 In 1936 Congress enacted the Flood Control Act of 1936, 49 Stat. 1570, defining the public interest in flood control as follows: 'It is hereby recognized that destructive floods upon the rivers of the United States * * * constitute a menace to national welfare; that it is the sense of Congress that flood control on navigable waters or their tributaries is a proper activity of the Federal Government * * *; that the Federal Government should improve or participate in the improvement of navigable waters or their tributaries, including watersheds thereof, for flood-control purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs, and if the lives and social security of people are otherwise adversely affected.' 49 Stat. 1570, 33 U.S.C. § 701a, 33 U.S.C.A. § 701a. In the same Act, the Secretary of War was authorized to continue surveys at a number of localities, including 'Reservoirs in Roanoke and Tar Rivers, North Carolina.'1 § 7, Act of 1936, 49 Stat. 1596. In § 6 of the Act, Congress provided that 'the Government shall not be deemed to have entered upon any project for the improvement of any waterway mentioned in this Act until the project for the proposed work shall have been adopted by law'. 49 Stat. 1592. 7 Following a destructive flood on the Roanoke River in 1940, the House Committee on Flood Control adopted a resolution requesting reappraisal of the previous reports on the Roanoke River to determine 'whether any improvements in the interests of flood control and allied purposes are advisable at this time.' See H.R.Doc.No. 650, 78th Cong., 2d Sess. 12 (1944). A similar resolution was adopted later by the House Committee on Rivers and Harbors, see ibid., and as a result, the Corps of Engineers submitted its recommendations in a report which became H.R.Doc.No. 650, 78th Cong., 2d Sess. (1944). This report recommended the comprehensive Roanoke Basin plan here in issue. The report proposed a system of eleven dams and reservoirs, eight of them on the Roanoke River, and recommended authorization of two of those projects, designated Buggs Island and Philpott, 'as the initial step.' Id., at 2. 8 Petitioners rely most strongly on two features of this report for their claim that Congress has, by approving the plan outlined in the report, withdrawn all sites in the plan from the licensing jurisdiction of the Federal Power Commission. As the report moved up through the hierarchy of the Corps of Engineers, comments upon the plan were made by the different responsible officers. The detailed report of the investigating engineer estimated costs, including interest, on bases obviously contemplating federal financing. These figures were accepted in the comments of each forwarding officer. Further, the Chief of Engineers, in submitting the report, stated, 'To safeguard the interests of navigation and flood control, the dams and power facilities should be constructed, operated, and maintained under the direction of the Secretary of War and the supervision of the Chief of Engineers.' Ibid. Neither the reports nor the comments of subordinates had contained any such suggestion or any engineering or other reasons why such a recommendation might be made, and the Chief of Engineers gave no reasons for his suggestion. Further, it is not clear from the context that the statement referred to all the projects and not simply to the two dams to be authorized, that is, the ones with flood-control features, or even that the words 'under the direction * * * and the supervision' precluded construction by a private applicant; indeed, the order here granting the license specifically requires the licensee to 'operate its project in such a manner as the Chief of Engineers, Corps of Engineers, Department of the Army, or his authorized representative may prescribe.' We do not think these disconnected statements would justify us in saying that the report as it went to Congress plainly proposed that the Government construct all the projects in the plan. There are contrary indications in the report itself; particularly pertinent in the light of congressional practice is the strong emphasis put on the flood-control aspects of the two projects recommended for authorization. In any event, we do not have a recommendation for public construction that is clearly an integral part of the plan, and the decisive question is not what this or that isolated statement in the report or the comments thereon imply but how Congress may fairly be said to have received and read the report in the light of the legislative practice in relation to such public works. 9 It deserves mention that the Roanoke Rapids site, although comprehended in the plan and found to be the most desirable power site of all eleven units, was to be developed simply for the production of power. The District Engineer pointed out that the two projects recommended for early authorization would provide practically all the flood-control benefits to be derived from the plan; installations at the two sites, Buggs Island and Philpott, would 'eliminate over 90% of the flood losses to the two main flood-damage aress in the Roanoke River Basin.' Id., at 88. At those two sites were to be built multiple-purpose reservoirs for flood control, water power, and low-water regulation, while at the other nine sites, with one minor exception, there were simply to be power projects. 10 As is customary, the Federal Power Commission was asked to comment on the proposal; by letter to the Chief of Engineers dated May 3, 1944, the Commission suggested some technical changes but concurred substantially in the recommendations of the Engineers, 'that the comprehensive development of the Roanoke River Basin, in general accordance with the plans prepared therefor by the district engineer consisting of 11 dam and reservoir projects with power, is desirable and that the Buggs Island and Philpott projects would constitute a desirable initial step in the development of the Roanoke River Basin.' Id., at 4. 11 The report was presented to Congress while the bill that became the Flood Control Act of 1944 was under consideration; although the House had already closed its hearings, the Senate Report proposed amending the bill to include provision for the Roanoke Basin, recommending 'approval of the comprehensive plan and authorization for construction of the Buggs Island and Philpott Reservoirs in accordance with the recommendations of the Chief of Engineers.' S.Rep. No. 1030, 78th Cong., 2d Sess. 8. 12 The proposal was accepted, and § 10 of the Act contains a corresponding provision. It provides that 'the following works of improvement * * * are hereby adopted and authorized'. Included in an omnibus listing of such 'works of improvement' is the following: 'The general plan for the comprehensive development' of the Roanoke Basin recommended in H.R.Doc. No. 650 'is approved' and construction of Buggs Island and Philpott is 'hereby authorized substantially in accordance with the recommendations of the Chief of Engineers in that report at an estimated cost of $36,140,000.'2 13 It is this statutory language that petitioners say withdrew the Roanoke Rapids site from the licensing jurisdiction of the Commission. They ask us to read the word 'approved' as a reservation of the site for public construction and, by necessary implication, a withdrawal of the site from the Commission's licensing authority. A flat 'approval' of a plan clearly recommending public construction as an indispensable constituent of the plan might indeed have that effect, but, as indicated above, we do not find that the plan made any such recommendation. 14 A separate argument of petitioners is based in part on the language of a proviso commonly inserted in authorizations for flood-control surveys,3 that the Government shall not be deemed to have entered upon a project until the project is 'adopted by law.' From this language petitioners infer that the Government's entry upon a project so as to preclude private construction occurs when Congress adopts a project, and they ask us to say that such adoption occurred here when Congress 'approved' the plan comprehending the Roanoke Rapids site. We do not think the word 'approval' carries the implication of 'adoption' or 'authorization' by its own force. Read together with other legislative action concerning water resources and with the history of federal activity in that regard, congressional 'approval' without more4 cannot be taken, we think, to indicate in this case more than a legislative finding that the proposed projects, no matter by whom they may be built, are desirable and consistent with congressional standards for the ordered development of the Nation's water resources. Such a finding has meaning in conveying the congressional purpose and expressing a congressional attitude. Concretely it means that Congress has adopted a basic policy for the systematic development of a river basin. Decision is made on such questions as the locations of projects, the purposes they are to serve, their approximate size and the desirable order of construction; because of the necessary interrelationship of many technical engineering and economic features of the several dams in a single river basin, early choice among possible alternatives is imperative. The policy chosen by Congress when it approves a plan is, in the first place, directed to Congress itself in its appropriating function.5 Approval also tells the Federal Power Commission—the executant of congressional policy—how to exercise its authority in relation to the authorization of sites in the Roanoke Basin. The finding had utility in this case in the guidance it gave the Commission in determining whether a private applicant would adequately develop all the benefits that should be derived from the proposed site.FN 3. See e.g., § 6 of the Flood Control Act of 1936, quoted 345 U.S. 158, 73 S.Ct. 613, supra. 15 In so interpreting the language Congress has used, we gain some light from the action Congress has taken to set projects in motion following enactment of statutes 'approving' a comprehensive plan and 'authorizing' certain projects set out in the plan. For the Roanoke River Basin itself, although Buggs Island and Philpott were specifically 'authorized' in the Flood Control Act of 1944, separate steps were taken by Congress to complete the authorization; 'planning money' was appropriated, a 'Definite Project Report' was received for Buggs Island, and then funds for construction of Buggs Island were appropriated. Equally illuminating is the procedure by which Congress recently set in motion plans to build a project 'approved' exactly as was the Roanoke Rapids project. At approximately the same time as the engineering reports on the Roanoke River were submitted, a comparable report was submitted concerning the Savannah River, Georgia, and recommending a comprehensive plan much like the Roanoke River Basin plan. Like Buggs Island and Philpott in the Roanoke plan, Clark Hill in the Savannah plan was recommended for immediate authorization, thorization, 'as the initial step.' See H.R. Doc. No. 657, 78th Cong., 2d Sess. 6. As the demand for power increased, other projects included in the plan were to follow, the first to be the Hartwell site. The Senate Report accepted this recommendation, S.Rep. No. 1030, 78th Cong., 2d Sess. 9—10, just as it had the Roanoke Basin recommendation, and called for 'approval of the comprehensive plan and authorization for construction of the Clark Hill project.' Id., at 10. Section 10 of the Flood Control Act of 1944 contains a corresponding provision. 58 Stat. 894. Thus, the background as well as the precise terms of the provisions relating to projects in the Savannah River plan are closely parallel to those relating to the Roanoke projects. Recently, when further construction on the Savannah River was proposed and authorization of Hartwell, the site next in line, was recommended, neither Congress nor the Engineers treated the earlier 'approval' of the comprehensive plan as a final step making unnecessary other than automatic appropriations for Hartwell. Rather, hearings were held, see Hearings before House Committee on Public Works on H.R. 5472 (Title II), 81st Cong., 1st Sess. 37—85 (May 16, 1949), and a separate authorization for construction was included in the Rivers and Harbors Act of 1950, 64 Stat. 171.6 16 Respondents further point out that at the same time hearings were held on the Hart-well project, there were also hearings on further construction in the Roanoke Basin, and the Corps of Engineers proposed the authorization of Smith Mountain, a project with minor flood-control benefits but not next in line under the plan as approved in the Flood Control Act of 1944. That plan had put the Roanoke Rapids site here involved and the Gaston site ahead of Smith Mountain. The reason given by the Engineers for changing the order of construction was that private applications, including the application here, had been made or contemplated for the Roanoke Rapids and Gaston sites. While we do not attach weight to subsequent statements by the Engineers that the Flood Control Act of 1944 did not preclude private construction of some projects in the plan, it is pertinent to note that a Committee of Congress responsible for water resources legislation was informed that an application was pending for private construction. Whether or not the Committee agreed that the Flood Control Act of 1944 allowed private construction of projects comprehended in plans there approved, in fact no action was taken by it to prevent the Commission from proceeding to hear the VEPCO application, although the Committee learned that the application was pending over a year and a half before the order was handed down by the Commission. 17 Whatever light these subsequent proceedings in Congress afford, both as to the Roanoke Basin and as to the comparable Hartwell site in the Savannah River plan, we find no solid ground for concluding that Congress has taken over the entire river basin for public development with such definiteness and finality so as to warrant us in holding that Congress has withdrawn as to this whole river basin its general grant of continuing authority to the Federal Power Commission to act as the responsible agent in exercising the licensing power of Congress. Extensive review of the need for integration of federal activities affecting waterways, see, e.g., Report of Secretary of War Stimson, H.R.Doc. No. 929, 62d Cong., 3d Sess. 32—35 (1912), and of the breadth of authority granted to the Commission by Congress in response to that need is hardly necessary to establish the role of the Commission in hydroelectric power development. See, e.g., First Iowa Hydro-Elec. Co-op. v. Federal Power Comm., 328 U.S. 152, 180, 181, 66 S.Ct. 906, 919, 90 L.Ed. 1143, and cases cited. From the time that the importance of power sites was brought to public and congressional consciousness during the administration of President Theodore Roosevelt, the significant development has been the devising of a general power policy instead of ad hoc action by Congress, with all the difficulties and dangers of local pressures and logrolling to which such action gave rise. See the Veto Messages of Presidents Roosevelt and Taft, e.g., 36 Cong.Rec. 3071 (Muscle Shoals, Ala., 1903); 42 Cong.Rec. 4698 (Rainy River, 1908); H.R.Doc. No. 1350, 60th Cong., 2d Sess. (James River, 1909); H.R.Doc. No. 899, 62d Cong., 2d Sess. (White River, 1912); S.Doc. No. 949, 62d Cong., 2d Sess. (Coosa River, 1912). It soon became clear that indispensable to a wise national policy was the creation of a commission with functions and powers comparable to those of the Interstate Commerce Commission in the field of transportation. It took the usual time for such a commission to come into being, and the process was step-by-step. Originally Congress entrusted its policy to a commission composed of three Cabinet officers. 41 Stat. 1063. An agency so burdened with other duties was naturally found inadequate as the instrument of these important water-power policies. And so, in 1930, the Commission was reorganized as an expert body of five fulltime commissioners. 46 Stat. 797, 16 U.S.C. § 792, 16 U.S.C.A. § 792. These enactments expressed general policies and granted board administrative and investigative power, making the Commission the permanent disinterested expert agency of Congress to carry out these policies. Cf. 41 Stat. 1065, as amended, 49 Stat. 839, 16 U.S.C. § 797, 16 U.S.C.A. § 797; 3 Rep.Pres. Water Resources Policy Comm'n 501 (1950). 18 A principal responsibility of the Commission has always been that of determining whether private construction is consistent with the public interest. See, e.g., S.Rep. No. 180, 66th Cong., 1st Sess. 3. Express provision is made to charge the Commission with the task of deciding whether construction ought to be undertaken by the United States itself. 41 Stat. 1067 as amended, 49 Stat. 842, 16 U.S.C. § 800(b), 16 U.S.C.A. § 800(b). Further, even if private construction is to be allowed, approval of private applications requires a determination that the proposed project is 'best adapted to a comprehensive plan' for water resources development. 41 Stat. 1068, as amended, 49 Stat. 842, 16 U.S.C. § 803(a), 16 U.S.C.A. § 803(a). Thus, congressional approval of a comprehensive plan can be read, as we think it should in this case, simply as saying that a plan such as that here, recommended by the Corps of Engineers for the fullest realization of the potential benefits in the river basin, should be accepted by the Commission as the comprehensive plan to be used in the application of these statutory provisions. That 'approval' as such does not reserve all projects in the plan for public construction is perhaps further indicated by the fact that when Congress has wished to reserve particular sites for public construction, it has chosen to say so. See 41 Stat. 1353, 45 Stat. 1012, 45 Stat. 1062. 19 Of course it is not for us to intimate a preference between private or public construction at this site. Nor are we even asked to review the propriety of the Commission's determination in this case that private construction is 'in harmony with' the comprehensive plan for the Roanoke basin. Re Virginia Electric & Power Co., 87 P.U.R.,N.S., 469, 483. We are simply asked to decide whether Congress has withdrawn the power to decide this question from the Commission. To conclude that Congress has done so by approving a general plan for development that may be, and in this case was, a plan for long-term development, would be to contract, by a tenuous chain of inferences, the broad standing powers of the Commission. Particularly relevant in this regard is the estimate that public development at this site would not in the normal course be undertaken for many years. See Examiner's Decision of March 17, 1950, R., I, 109. Congress was of course aware that, by granting a license to private enterprise, the Federal Power Commission would not commit the site permanently to private development and preclude all further congressional action. The Commission would, as it did here, simply express its judgment that, at the time, private development of the site was consistent with the general conception of the way in which the Roanoke River Basin should be developed. For, at any time short of the fifty years in which a site automatically becomes available to the Government without compensation, the Government may determine that the public interest makes it more desirable that the project be operated publicly and has the right then, by appropriate steps, to take over the project. 41 Stat. 1071, as amended, 49 Stat. 844, 16 U.S.C. § 807, 16 U.S.C.A. § 807. The purpose of Congress would have to be much more clearly manifested to justify us in inferring that Congress revoked the Commission's power to decide whether a private license consonant with the general scheme of development for this river basin ought now to be granted in the public interest. 20 Our conclusion is in accord with the implications of the manifest reluctance of Congress to enter upon power projects having no flood control or navigational benefits. It cannot be said that as unclear a term as 'approval' was to have settled, for this entire river basin, a major controversy that has arisen again and again in connection with legislation authorizing public construction of hydroelectric projects. The declaration of policy in the Flood Control Act of 1936, supra, 345 U.S. 157, 158, 73 S.Ct. 613, puts strong emphasis on the flood-control aspects of plans for sites that would also produce power; no change in this policy can be read into § 10 of the Flood Control Act of 1944. Cf., e.g., 90 Cong.Rec. 4126; id., at 4127. And the sponsor in the House of the Flood Control Act of 1944 stated in answer to a question: '* * * we have repeatedly stated during the debate that no project, reservoir, or dam, or other improvement is embraced in this bill unless it is primarily for flood control. If power can be developed as an incident, or if reclamation can be provided, they are cared for in the bill.' 90 Cong.Rec. 4199; cf. id., at 4202. In the light of this history and these specific declarations, it strains belief that 'approval' of the comprehensive plan for the Roanoke Basin reserves all projects named in the plan for federal construction when the two projects that provided the chief flood-control features of the plan were the only ones specifically authorized. 21 Subordinate arguments are made, bearing partly on the power of the Commission to issue any license for private development and partly on the Commission's exercise of its power in granting this license. The arguments involve technical engineering and economic details which it would serve no useful purpose to canvass here. Once recognizing, as we do, that the Commission was not deprived of its power to entertain this application for a license, we cannot say, within the limited scope of review open to us, that the Commission's findings were not warranted. Judgment upon these conflicting engineering and economic issues is precisely that which the Commission exists to determine, so long as it cannot be said, as it cannot, that the judgment which it exercised had no basis in evidence and so was devoid of reason. 22 At the heart of these arguments is the fact that the Roanoke Rapids site is, under present estimates, the most desirable site for power in the Roanoke Basin. For that reason, as petitioners argue, removal of the Roanoke Rapids site from a government-operated system would result in loss to the Federal Government of the potential benefits of that site and a decrease, but only by the amount of the Roanoke Rapids profits, in the potential profits of the system as a whole. But it has never been suggested that such is the criterion under which the Commission is to determine whether a project ought to be undertaken by the United States, let alone that such considerations could demonstrate that Congress withdrew the Roanoke Rapids site from the licensing jurisdiction of the Commission. If it could be shown that the plan could not be executed successfully without the Roanoke Rapids site, it would be arguable that congressional approval of the plan presupposed that all units of the plan be centrally administered. The findings are to the contrary. The Commission has found that the proposed private project is consistent with the plan contained in the Flood Control Act of 1944, Re Virginia Electric & Power Co., supra, at 483; that there is no reason to believe that the 'interest of the public at large will not be fully protected and promoted' by the issuance of this license, id., at 472; and that there was no showing that the Roanoke Rapids site would 'at any time' be developed by the United States. Id., at 483. Further, there is express recognition of the possibility that the site may be benefited by government projects in operation and consequently of the fact that VEPCO may be required to compensate the Government for any such 'headwater benefits' conferred.7 Id., at 477—478. 23 Finally, we do not find merit in the contention that the Commission was required by § 7(b) of the Federal Power Act to recommend public construction of the project.8 As the report of the Corps of Engineers does not clearly recommend that all projects be constructed by the United States, the Commission's concurrence in that report cannot provide a basis for invoking the provisions of § 7(b). Section 7(b) is a direction to the Commission not to approve a private application for a project 'affecting' any development of water resources which, in the judgment of the Commission, should be undertaken by the United States itself. Petitioners in effect ask us to tell the Commission what it thought—to say to the Commission that it was its judgment that Roanoke Rapids, as well as all the other seven projects in the Roanoke plan not yet under consideration, should be built by the Government. It is not clear that the Commission's concurrence in the general plan would have been much more than simple approval of the location of the dams, the purposes they would serve, and the engineering characteristics of the projects, even if the report had clearly recommended public construction. Primary responsibility for the enforcement of the provisions of § 7(b) must remain with the Commission; we cannot infer a judgment of the Commission that it never expressed and now specifically disavows. 24 For these reasons, we agree with the Court of Appeals that the Commission's order must stand. In the bits and pieces of legislative history which we have set out, we find no justification for inferring that Congress withdrew the Commission's authority regarding the Roanoke River Basin from the general authority given the Commission to grant licenses for private construction of hydroelectric projects with appropriate safeguards of the public interest. Whatever the merits of the controversy as to which agency—the Government or a private party—should construct this project, that question is not within our province. 25 Affirmed. 26 Mr. Justice CLARK, concurring. 27 I agree with the majority that the sole question before us is whether Congress has withdrawn the Roanoke Rapids site from the licensing jurisdiction of the Commission and that the answer is in the negative. But in reaching this result weight should be given the administrative interpretation of the 1944 Flood Control Act both by the Army Corps of Engineers and the Federal Power Commission. Taken together with the fact that Congress was fully advised of the Commission's action and the Corps' agreement with it as early as May 1949 and failed to express any disagreement during the period of more than two years when the application was under consideration, this administrative interpretation seems to me decisive. 28 We are cited to three cases in which the Commission, with the full approval of the Corps of Engineers, has licensed private developments despite prior congressional action adopting and authorizing public construction as part of river basin improvement plans.1 While the plans included in those projects may not have been as comprehensive as The Roanoke River Basin Plan, each had been approved by Acts of Congress using language similar to that in § 10 of the Flood Control Act of 1944. With this as background, a colloquy between Colonel Gee of the Corps of Engineers and the House Flood Control Committee on May 16, 1949, gains significance. Colonel Gee mentioned VEPCO's then pending application and stated that the Corps has not regarded the 1944 approval as precluding such private licensing.2 I would affirm on the basis of this administrative interpretation by two agencies charged by Congress with direct flood control and power licensing responsibilities. 29 Mr. Justice DOUGLAS, with whom the CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting. 30 Roanoke Rapids is a power site belonging to the Federal Government and now surrendered to private power interests under circumstances that demand a dissent. 31 Roanoke Rapids is a part of the public domain. 32 (1) The Roanoke is a navigable stream over which Congress has complete control for purposes of navigation, flood control, watershed development, and the generation of electric power. United States v. Appalachian Power Co., 311 U.S. 377, 426, 61 S.Ct. 291, 308, 85 L.Ed. 243; State of Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 525, 61 S.Ct. 1050, 1059, 85 L.Ed. 1487. 33 (2) The water power inherent in the flow of a navigable stream belongs to the Federal Government. United States v. Appalachian Power Co., supra, 311 U.S. at page 424, 61 S.Ct. at page 307, 85 L.Ed. 243. 34 (3) The dam sites on this navigable stream are public property. The technical title to the bed of the stream may be in private hands. But those private interests have no compensable interest as against the control of the Federal Government. United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596—597, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064; United States v. Commodore Park, 324 U.S. 386, 390, 65 S.Ct. 803, 89 L.Ed. 1017. 35 This is familiar law that emphasizes the public nature of the project which the Court now allows to be used for the aggrandizement of private power interests. This project is as much in the public domain as any of our national forests or national parks. It deals with assets belonging to all the people. 36 These facts must be kept in mind in reading § 10 of the Flood Control Act of 1944, 58 Stat. 887, 891.1 From that starting point I think it only fair to conclude (1) that if Congress undertook to remove this project from the public domain, it would make its purpose plain; and (2) that when Congress approved the project it meant to reserve it for the public good, not to make it available to private interests to exploit for their own profit. 37 Section 10 'adopted and authorized' the development of the Roanoke River Basin 'in the interest of the national security and with a view toward providing an adequate reservoir of useful and worthy public works for the post-war construction program.' The words 'public works' certainly connote public not private construction. 38 Section 10 further provided that the projects which are 'adopted and authorized' are 'to be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers'. That language also suggests public projects, not private undertakings. 39 Section 10 also provided that these projects 'shall be initiated as expeditiously and prosecuted as vigorously as may be consistent with budgetary requirements'. Plainly Congress was concerned with the 'budgetary requirements' of the Federal Government, not with the budgetary requirements of private power companies. Section 10, after approving the general plan for the comprehensive development of the Roanoke River Basin, authorizes the construction of the Buggs Island Reservoir on the Roanoke River and the Philpott Reservoir on the Smith River. 40 This Act, passed before the end of World War II, was designed to serve a post-war need. It was drawn so as to provide a backlog of public works projects which would take up the slack of unemployment expected at the war's end. Congressman Whittington, in charge of the bill in the House, made the following significant statement concerning this objective, 90 Cong.Rec. 4122: 41 'We recall the depression following World War No. 1. We are apprehensive of another debacle following the present war. It is difficult to arm. It is more difficult to disarm. Post-war unemployment will be a major national problem. While we are defending our freedom and our way of life, we must not fail to take stock of the problem of unemployment which we must face when the war is over. 42 'We must profit by the experience of 1920. We must profit by the experience of 1930. A reservoir of projects must be adopted. Backlogs should be provided and they should be real backlogs. Many wasteful and extravagant activities to provide employment were adopted in 1933. Haste and speed were imperative. There was hunger in the land. Unemployment was widespread. There must be no repetition of waste and extravagance. There are Federal activities and there are public works that will promote the general welfare.' 43 This statement highlights the meaning of 'public works' as used in § 10; it discloses an important reason for lodging the program with public officials; it emphasizes the occasion for referring to the budgetary requirements of the Federal Government and the importance of linking flood control with post-war unemployment problems. 44 The argument that when Congress by § 10 of the Act 'adopted and authorized' the 'following works of improvement', it 'adopted and authorized' only the Buggs Island and Philpott reservoirs involves an invented distinction between 'works of improvement' and 'general plans for development'—a distinction without any rational basis. The 'works of improvement' which are 'adopted and authorized' by § 10 are 38 in number. Some of these are described in the sub-headings as 'projects' that are 'authorized,' some as 'plans of improvement' that are 'approved' and 'authorized,' some as 'general plans' for the comprehensive development of river basins that are 'approved' together with the 'construction' of specific projects that are 'authorized.' This makes plain that 'works of improvement' which are 'adopted and authorized' by § 10 include a variety of undertakings, not merely works of construction which are first steps in general comprehensive plans being adopted and authorized. 45 From this it seems almost too plain for argument that Congress, in approving the plan for the development of the Roanoke River Basin, was setting it aside for federal development, the several public works projects under the plan to be authorized as, if, and when conditions warranted them and budgetary requirements permitted.2 In this setting 'approval' by Congress meant a dedication of the projects for public development.3 46 If that view is not taken, they why did Congress call these projects 'public works'? If these projects were destined for development by private power interests, why did Congress place their construction under the Secretary of War and the Chief of Engineers? If Congress left this part of the public domain for exploitation by private power groups, why did it gear them to the employment requirements of the post-war period and the budget requirements of the Federal Government? Approval of the projects by Congress under these various terms and conditions can only mean one thing—that Congress gave its sanction to their development as public projects. 47 To be sure, Congress in the Federal Power Act left part of the public domain to be exploited by private interests, if the Federal Power Commission so orders. But the action relative to the Roanoke River Basin was action by Congress without reference to the Federal Power Commission. Its action was not made dependent on the approval of the Federal Power Commission. The Act in no way links the Roanoke River Basin program to the Commission. To the contrary, the Congress undertook to authorize specific projects under the plan, plainly suggesting that these were public projects whose authorization was in no way dependent on Commission action. 48 The true character of this raid on the public domain is seen when Roanoke Rapids is viewed in relation to the other projects in the comprehensive plan. Roanoke Rapids is the farthest downstream of the 11 units in the plan. Upstream from Roanoke Rapids is Buggs Island (now under construction with federal funds) with an ultimate installed capacity of 204,000 kw. and a controlled reservoir capacity of over 2,500,000 acre-feet. Roanoke Rapids is indeed the powerhouse of the Buggs Island Reservoir. That reservoir increases the dependable capacity of Roanoke Rapids from 4 hours during the peak month of December to 288 hours in the same peak month. Buggs Island contributes 70,000,000 kw.-hr. to the Roanoke Rapids project. This is on-peak energy, firm energy made dependable by the storage in the Buggs Island Reservoir. There is evidence that this energy will have a value in excess of $700,000 a year.4 49 That $700,000 of value is created by the taxpayers of this country. Though it derives from the investment of federal funds, it will now be appropriated by private power groups for their own benefit. The master plan now becomes clear: the Federal Government will put up the auxiliary units—the unprofitable ones; and the private power interests will take the plums—the choice ones. 50 There is not a word in the Act which allows such an unconscionable appropriation of the public domain by private interests. To infer that Congress sanctioned such a scheme is to assume it was utterly reckless with the public domain. I would assume that Congress was a faithful trustee, that what is approved as 'public works' projects it dedicated to the good of all the people. 1 Section 6 of the Flood Control Act of 1938 authorized the Secretary of War to make surveys 'for flood-control' of the Smith River, a tributary of the Roanoke on which two of the eleven projects in the comprehensive Roanoke Basin plan are located. 52 Stat. 1223. 2 The full text of the provisions, so far as they are relevant, is as follows: 'Sec. 10. That the following works of improvement for the benefit of navigation and the control of destructive flood waters and other purposes are hereby adopted and authorized in the interest of the national security and with a view toward providing an adequate reservoir of useful and worthy public works for the post-war construction program, to be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers in accordance with the plans in the respective reports hereinafter designated and subject to the conditions set forth therein: (Provisos omitted). 'Roanoke River Basin 'The general plan for the comprehensive development of the Roanoke River Basin for flood control and other purposes recommended by the Chief of Engineers in House Document Numbered 650, Seventy-eighth Congress, second session, is approved and the construction of the Buggs Island Reservoir on the Roanoke River in Virginia and North Carolina, and the Philpott Reservoir on the Smith River in Virginia, are hereby authorized substantially in accordance with the recommendations of the Chief of Engineers in that report at an estimated cost of $36,140,000.' 58 Stat. 891 892, 894. 3 See e.g., § 6 of the Flood Control Act of 1936, quoted 345 U.S. 158, 73 S.Ct. 613, supra. 4 There is little force in the argument that the words 'adopted and authorized' in § 10, see note 2, supra, apply to the Roanoke Rapids site. Not only is the specific provision as to the Roanoke Basin to control over the general, but that which is adopted and authorized is not 'the following plans' but 'the following works of improvement,' which patently refers to such projects as Buggs Island and Philpott, rather than to all sites named in a comprehensive plan. This answers that part of petitioners' argument which relies on the language of § 10 speaking of prosecution of the projects 'under the direction of the Secretary of War' when 'budgetary requirements' permit. As a matter of language, apart from all other considerations, the 'works of improvement' to which such language refers is better read as the projects authorized rather than as all projects named in plans that were approved. 5 The Rules of both the Senate and the House in 1944, as now, called for previous choice of policy through authorization by law before any item of appropriations might be included in a general appropriations bill. Rule XVI, Senate Manual, S. Doc. No. 239, 77th Cong., 2d Sess. 20; Rule XXI, Rules of the House of Representatives, H.R. Doc. No. 812, 77th Cong., 2d Sess. 384. The importance of this distinction in the context of authorization of power projects is brought out in the following colloquy between a representative of the Corps of Engineers and Chairman Whittington of the House Committee on Public Works: 'The Chairman: . . . Is not the word 'approved' an authorization for the plan but without appropriation, or without an authorization for the appropriation? 'What is the difference between approving and authorizing a plan? 'Colonel Gee: We have never construed the approval of the plan to carry with it the authorization to construct the elements of that plan. 'The Chairman: Nor do we.' Hearings before the House Committee on Public Works on H.R. 5472 (Title II), 81st Cong., 1st Sess. 42. 6 The general enacting provision, § 204, 64 Stat. 170, is substantially the same as § 10 of the Flood Control Act of 1944, supra, note 2. The specific provision as to the Savannah River is as follows: 'Savannah River Basin 'There is hereby authorized to be appropriated the sum of $50,000,000 for the construction of the Hartwell project in the general plan for the comprehensive development of the Savannah River Basin, approved in the Act of December 22, 1944, in addition to the authorization for project construction in the Act of December 22, 1944.' 64 Stat. 171. 7 Thus, whatever benefits may be conferred by such government projects as Buggs Island on the Roanoke Rapids site will not be lost to the United States. The Commission is required by § 10(f) of the Federal Power Act, 41 Stat. 1070, as amended, 49 Stat. 843, 16 U.S.C. § 803(f), 16 U.S.C.A. § 803(f), to determine the charges to be paid by the licensee. The parties are in dispute over the value of the benefits, but, as the Commission said, '(t)he amount of the payments for headwater benefits due under the Federal Power Act cannot be estimated with any degree of accuracy until after the project has been placed in operation for such time as necessary to demonstrate what actual benefits are being conferred.' Re Virginia Electric & Power Co., supra, at 478. We do not consider the correct basis for ascertaining the amount due to the United States, because, as the Commission's statement indicates, the question is not before us in this case. 8 Section 7(b) of the Federal Power Act provides: 'Whenever, in the judgment of the Commission, the development of any water resources for public purposes should be undertaken by the United States itself, the Commission shall not approve any application for any project affecting such development, but shall cause to be made such examinations, surveys, reports, plans, and estimates of the cost of the proposed development as it may find necessary, and shall submit its findings to Congress with such recommendations as it may find appropriate concerning such development.' 1 License issued to County of Placer, California, August 8, 1951. Project No. 2021, for power plant at debris storage dam on North Fork, American River, constructed pursuant to authorization in River and Harbor Act of August 30, 1935, 49 Stat. 1028, 1038, as recommended in House Rivers and Harbors Committee Document No. 50, 74th Congress. License issued to St. Anthony Falls Water Power Co., August 31, 1951, Project No. 2056, to use water from United States navigation dam at St. Anthony Falls, Minnesota, authorized in the River and Harbor Act of 1937, 50 Stat. 844, 848, as recommended in House Rivers and Harbors Committee Document No. 34, 75th Congress. Two licenses issued in 1934 and 1936 to Kanawha Valley Power Co., Projects Nos. 1175 and 1290, for three power plants at navigation dams on Kanawha River, West Virginia, authorized in River and Harbor Act of 1930, 46 Stat. 918, 928, as recommended in H.R. Doc. No. 190, 70th Cong., 1st Sess. 2 'Mr. Angell. Is the Federal Government at the present time planning to develop any of those dams on the lower part of the river which are devoted exclusively to power production? 'Colonel Gee. No, sir. They have the same status in this basin plan as the eight remaining projects. They are part of the approved plan. Their being in that plan certainly is no bar to a private utility company coming in and seeking to develop one of these projects. 'Mr. Angell. And that is what is being done now. 'Colonel Gee. That is being done now at Roanoke Rapids, sir.' Hearings before the Committee on Public Works, H.R. 5472, Tit. II, 81st Cong., 1st Sess. 144. 1 Section 10 of the Flood Control Act of 1944 reads in pertinent part as follows: 'That the following works of improvement for the benefit of navigation and the control of destructive flood waters and other purposes are hereby adopted and authorized in the interest of the national security and with a view toward providing an adequate reservoir of useful and worthy public works for the post-war construction program, to be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers in accordance with the plans in the respective reports hereinafter designated and subject to the conditions set forth therein: Provided, That the necessary plans, specifications, and preliminary work may be prosecuted on any project authorized in this Act to be constructed by the War Department during the war, with funds from appropriations heretofore or hereafter made for flood control, so as to be ready for rapid inauguration of a post-war program of construction: Provided further, That when the existing critical situation with respect to materials, equipment, and manpower no longer exists, and in any event not later than immediately following the cessation of hostilities in the present war, the projects herein shall be initiated as expeditiously and prosecuted as vigorously as may be consistent with budgetary requirements: And provided further, That penstocks and other similar facilities adapted to possible future use in the development of hydroelectric power shall be installed in any dam authorized in this Act for construction by the War Department when approved by the Secretary of War on the recommendation of the Chief of Engineers and the Federal Power Commission. 'Roanoke River Basin 'The general plan for the comprehensive development of the Roanoke River Basin for flood control and other purposes recommended by the Chief of Engineers in House Document Numbered 650, Seventy-eighth Congress, second session, is approved and the construction of the Buggs Island Reservoir on the Roanoke River in Virginia and North Carolina, and the Philpott Reservoir on the Smith River in Virginia, are hereby authorized substantially in accordance with the recommendations of the Chief of Engineers in that report at an estimated cost of $36,140,000.' 2 Congressman Curtis, one of the House conferees, explained the same language in § 9 of the Act whereby Congress 'approved' comprehensive plans for the development of the Missouri River Basin (90 Cong.Rec. 9284): 'It means that Congress has approved the general plans of the engineers, and it means that these plans are authorized by law and are, therefore, eligible for future appropriations. Without such an authorization, no appropriation can be had.' 3 The interpretation placed on the Act by the Army Corps of Engineers are entitled to no weight. The Corps of Engineers is not an administrative agency charged with the responsibility of deciding issues of policy. Its powers are limited to the making of investigations and the preparation and submission of recommendations and reports based on engineering considerations. See, for example, § 1(a) of the Act of December 22, 1944, 58 Stat. 887, adopting and authorizing the Roanoke River Basin plan, 33 U.S.C. § 701—1(a), 33 U.S.C.A. § 701—1(a). Congress alone makes policy decisions affecting the public domain. 4 Even the evidence submitted by the private power company applicant belies the Commission's figure of $250,000 (see 87 P.U.R.N.S., 469, 477—478) and places the value in excess of $700,000. The Commission's figure of $250,000 is indubitably a plain error.
78
345 U.S. 183 73 S.Ct. 596 97 L.Ed. 938 ORVIS et al.v.BROWNELL, Jr., Attorney General of United States. No. 404. Argued Feb. 4, 1953. Decided March 16, 1953. Mr. Donald Marks, New York City, for petitioners. Mr. James L. Morrisson, Washington, D.C., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 This suit, under § 9(a) of the Trading with the Enemy Act,1 asks a decree that petitioners have an interest in vested property of Japanese nationals in the hands of the Alien Property Custodian, that he holds the property subject to petitioners' attachment lien and must satisfy their judgment. The controlling facts are not in controversy. The Japanese nationals involved were indebted to petitioners, while a third party, Anderson, Clayton & Co., was indebted to those Japanese. On June 14, 1941, Executive Order No. 8389, 12 U.S.C.A. § 95a note, became effective as to Japan, and it blocked all transfers of evidences of debt or interests in property of Japanese citizens. Thereafter, petitioners commenced suit against the Japanese debtors in a New York state court, and, without obtaining a license therefor, attached the Anderson, Clayton & Co. credit on June 25, 1943. Judgment was obtained, whereupon petitioners applied for a federal license to permit Anderson, Clayton & Co. to pay it. The application was refused. 2 Meanwhile, on June 27, 1947, the Custodian vested the Anderson, Clayton & Co. credit by a res vesting order and it was paid over to the Custodian. Petitioners filed notice of their present claim under § 9(a) of the Act for return of an interest in vested property, which was treated as another application for a retroactive license. The claim was dismissed insofar as it was a claim under § 9(a), based on interest in property, but was left and still is pending as a claim for payment of a debt under § 34 of the Act. 3 The difference between what was denied and what was left pending is important, for if the attachment and judgment create an interest in the property which can be retrieved from the Custodian under § 9(a), the judgment will be paid in full. On the other hand, if it is only an allowable debt under § 34, unless granted a priority it apparently will be paid only in part, since it appears that claims against the Japanese nationals considerably exceed the funds in the Custodian's hands. 4 Both parties moved for judgment on the pleadings. The District Court granted petitioners' motion and denied that of the respondent. The Court of Appeals reversed.2 We granted certiorari.3 5 The petitioning judgment creditors here are in the same position as were those in the declaratory judgment action of Zittman v. McGrath, 341 U.S. 446, 71 S.Ct. 832, 95 L.Ed. 1096, in that they have judgments and attachment liens valid under New York law as against their enemy national debtors and as against those whose credits were attached. In the first Zittman case, we held that the executive freezing order did not prevent such an attachment from creating rights between the judgment creditor and the enemy debtor whom the Custodian had elected to succeed. In the second Zittman case, however, we held that where the Custodian elected to vest the res for administration purposes he was entitled to possession, even as against such an attaching creditor whose lien would have been valid under New York law. We are now called upon to decide a question not presented by these earlier cases: whether the freezing order prevented a creditor from thereafter acquiring by attachment an 'interest, right, or title' in property such as will support a claim against the Custodian under § 9(a) of the Act.4 We hold that the freezing order did have such an effect and that, while it recognized attachment liens insofar as they determined relationships between creditor and enemy debtor, it did not permit the transfer of a property interest in the blocked funds which could be asserted against the Custodian. 6 The order forbids 'transfers of credit' and 'transfers of any evidences of indebtedness or evidences of ownership of property,' and General Ruling No. 125 specifies that this prohibition extends to the creation of a lien. Admittedly, if the Japanese had made a voluntary unlicensed assignment, it could have created no property interest. Admittedly also, if Anderson, Clayton & Co., with or without the consent of its Japanese creditors but without federal license, had paid over the fund to these petitioners, they would obtain no such interest. We cannot doubt that these administrative interpretations apply to the present transaction and that the general assent by the Government to state attachment procedures which we recited in the Zittman opinion did not extend so far as to recognize them as effecting a transfer. To so interpret it would ignore the express conditions on which the consent was extended. Realistically, these reservations deprive the assent of much substance; but that should have been apparent on its face to those who chose to litigate. The opportunity to settle their accounts with the enemy debtor was all that the permission to attach granted. 7 Petitioners challenge the statutory authorization for such an order. It is argued that the sole purpose of the Trading with the Enemy Act was to prevent transfers under duress of funds credited to residents of occupied countries. Though this was one of the aims of the Act, its language extends the authorization much farther.6 The validity of the freezing order as an implementation of the Trading with the Enemy Act was sustained in Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480, and we adhere to that holding. Petitioners also contend that the Custodian was not given power, similar to that of a bankruptcy court, to 'annul' liens and attachments. But the question is not whether a lien, concededly valid because obtained prior to the freezing order, may be 'annulled' by the Custodian, but rather whether the freezing order prevented the subsequent acquisition, by attachment, of such a property interest as the Custodian would have to recognize under § 9 of the Act. Because of the supremacy of the Federal Government on matters within its competence, the freezing order, while permitting an attachment for jurisdictional and other state law purposes, prevented the subsequent acquisition of a lien which would bind the Custodian under § 9. 8 Section 34 of the Act provides liquidation procedures by which debt claims may be allowed and priorities established. The petitioners' claim is pending for that purpose. Judicial review is provided. It would be premature to decide how the Custodian must treat this claim in a general accounting and settlement of his trust, since this proceeding seeks only to forestall such settlement of this claim. 9 The parties are in disagreement as to the course pursued by the Custodian in allowing payment of attachment creditors. In view of the statutory mandate that the assets shall be 'equitably applied by the Custodian in accordance with the provisions of this section', each case, to some extent, may rest on its own facts. We do not find it either necessary or possible to inquire whether other similar claims have been allowed on the grounds mentioned in § 9, and, if so, whether they were properly allowed by the Custodian. 10 Petitioners by their unlicensed attachment could obtain no 'interest, right, or title' in this fund recoverable against the Custodian. He may proceed to administer the vested assets according to § 34 of the Act and to consider petitioners' claim and is status thereunder, subject to the review therein provided. The suit under § 9(a), however, must fail. 11 Judgment affirmed. 12 Mr. Justice CLARK took no part in the consideration or decision of this case. 13 Mr. Justice DOUGLAS, with whom Mr. Justice FRANKFURTER concurs, dissenting. 14 Section 34(a) of the Trading With the Enemy Act, 60 Stat. 925, provides that property vested in the Alien Property Custodian 'shall be equitably applied by the Custodian in accordance with the provisions of this section to the payment of debts owed by the person who owned such property' prior to the vesting in the Custodian. A priority of debt claims is provided by § 34(g).1 But, unlike § 60 of the Bankruptcy Act, 52 Stat. 869, 11 U.S.C.A. § 96, it does not purport to outlaw liens acquired within certain periods or under specified conditions. Section 34(i) indeed recognizes that there may be liens asserted against the Custodian;2 and it in no way qualifies them by reason of the time of their acquisition. The House Report, H.R.Rep. No. 2398, 79th Cong., 2d Sess., p. 15, was quite explicit as respects the protection which § 34(i) was designed to give secured creditors and creditors claiming a lien: 15 'Protection of a secured creditor or a creditor claiming a lien is afforded by the proviso in subsection (i). Such a claimant may proceed as a general creditor, without thereby waiving his security. In addition or alternatively, he may file a claim or suit as a title claimant for return of his security interest in the property or for just compensation in respect of that interest, in which event his recovery would be reduced, as in the case of any other such plaintiff, to the extent of any debt claim payment made to him (or to any other claimant, if his claim as a title claimant was not filed in time to hold up debt claim payments). It is believed that this arrangement is preferable to provision of a separate special procedure for secured creditors.' Thus, as the Custodian concedes, a secured or lien creditor can proceed under § 9(a) for recovery of a property interest, see Markham v. Cabell, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165; Clark v. Uebersee Finanz-Korporation, A.G., 332 U.S. 480, 68 S.Ct. 174, 92 L.Ed. 88, or under § 34 for recovery of a debt, or both. 16 We have been meticulous in protecting the right of the Custodian to possession of assets which have been vested. Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480; Lyon v. Singer, 339 U.S. 841, 70 S.Ct. 903, 94 L.Ed. 1323; Zittman v. McGrath, 341 U.S. 471, 71 S.Ct. 846, 95 L.Ed. 1112. But we have also been meticulous to respect liens and preferences obtained in judicial or administrative proceedings so long as the enforcement of those liens did not interfere with the Custodian's administration. Lyon v. Singer, supra; Zittman v. McGrath, 341 U.S. 446, 71 S.Ct. 832, 95 L.Ed. 1096. 17 Yet why the concern in protecting the lien or the preference if there was no possibility of asserting it? Certainly it was not necessary to establish the lien to prove the claim. Certainly it was not necessary to establish the lien in order to have the right to apply for a license. 'As against the German debtors,' we said in Zittman v. McGrath, 341 U.S. 446, 463—464, 71 S.Ct. 832, 842, 'the attachments and the judgments they secure are valid under New York law, and cannot be cancelled or annulled under a Vesting Order by which the Custodian takes over only the right, title, and interest of those debtors in the accounts.' If we meant what we said, the claimants (in the position of petitioners in the present case) were more than unsecured creditors. They had lawful liens that could be proved in the federal proceedings. A lien implies some priority. We reserved the question as to its nature. But if we meant no more than what is now granted, the dissenting opinion in Zittman v. McGrath, supra, 341 U.S. at page 465, 71 S.Ct. at page 843, should have been made the law then rather than now. 1 50 U.S.C.App. § 9(a), 50 U.S.C.A.Appendix, § 9(a): 'Any person not an enemy or ally of enemy claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States * * * may file with the said custodian a notice of his claim under oath and in such form and containing such particulars as the said custodian shall require; and the President, if application is made therefor by the claimant, may order the payment * * * or delivery to said claimant of the money or other property so held by the Alien Property Custodian * * * or of the interest therein to which the President shall determine said claimant is entitled * * *. If the President shall not so order within sixty days after the filing of such application or if the claimant shall have filed the notice as above required and shall have made no application to the President, said claimant may institute a suit in equity in the Supreme Court of the District of Columbia or in the district court of the United States for the district in which such claimant resides * * * to establish the interest, right, title, or debt so claimed, and if so established the court shall order the payment * * * or delivery to said claimant of the money or other property so held by the Alien Property Custodian * * *.' 2 198 F.2d 708. 3 344 U.S. 902, 73 S.Ct. 283. 4 Executive Order No. 8389, April 10, 1940, 5 Fed.Reg. 1400, as amended June 14, 1941: '* * * All of the following transactions are prohibited, except as specifically authorized by the Secretary of the Treasury by means of * * * licenses, * * * if * * * such transactions involve property in which any foreign country designated in this Order, or any national thereof, has at any time on or since the effective date of this Order had any interest of any nature whatsoever, direct or indirect: * * * E. All transfers, withdrawals or exportations of, or dealings in, any evidences of indebtedness or evidences of ownership of property by any person within the United States * * *.' 5 General Ruling No. 12, April 21, 1942, 7 Fed.Reg. 2991: '5(a) The term 'transfer' shall mean any actual or purported act or transaction, * * * and without limitation upon the foregoing shall include * * * the creation or transfer of any lien * * *.' 6 50 U.S.C.App. § 5, 50 U.S.C.A.Appendix, § 5: '* * * (T)he President may * * * investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest * * *.' 1 'Debt claims shall be paid in the following order of priority: (1) Wage and salary claims, not to exceed $600; (2) claims entitled to priority under sections 191 and 193 of title 31 of the United States Code, except as provided in subsection (h) hereof; (3) all other claims for services rendered, for expenses incurred in connection with such services, for rent, for goods and materials delivered to the debtor, and for payments made to the debtor for goods or services not received by the claimant; (4) all other debt claims. No payment shall be made to claimants within a subordinate class unless the money from which, in accordance with subsection (d) hereof, payment may be made permits payment in full of all allowed claims in every prior class.' 2 '* * * no person asserting any interest, right, or title in any property or interest or proceeds acquired by the Alien Property Custodian, shall be barred from proceeding pursuant to this Act for the return thereof, by reason of any proceeding which he may have brought pursuant to this section; nor shall any security interest asserted by the creditor in any such property or interest or proceeds be deemed to have been waived solely by reason of such proceeding.'
1112
345 U.S. 146 73 S.Ct. 592 97 L.Ed. 912 BALTIMORE & O.R. CO. et al.v.UNITED STATES et al. No. 258. Argued and Submitted Jan. 7, 1953. Decided March 16, 1953. Mr. Robert H. Bierma, Chicago, Ill., for appellant. Mr. Daniel M. Friedman, Washington, D.C., for appellees U.S. and I.C.C. Mr. Frank A. Leffingwell, Dallas, Tex., for Texas Citrus and Vegetable Growers and Shippers. Mr. Justice BLACK delivered the opinion of the Court. 1 The appellant railroads brought this action in a United States District Court to set aside a rate order of the Interstate Commerce Commission. The order prescribed maximum carload rates for carrying certain kinds of fresh vegetables. The rates were charged to be 'confiscatory' and therefore in violation of the Due Process Clause of the Fifth Amendment. The sole basis for this charge was an allegation that if put in effect the rates would produce less money than it would cost the railroads to carry the particular vegetables covered by each rate. Denying that a commodity rate violates due process merely because it is noncompensatory, the Commission moved to dismiss the complaint on the ground that proof of everything the complaint alleged would not justify invalidation of the order. On this ground, and without reaching another Commission contention on which the District Court relied, we hold that the case was properly dismissed by that court.1 2 There is and has been no claim that the challenged rates will make any one of the complaining railroads operate its entire business at a loss, or even carry all fresh vegetables at a loss. The carload rates prescribed are but minor alterations in a vast, complex network of rates that apply to fresh-vegetable shipments throughout the Nation. One of the two rates applies only to carload shipments of carrots with tops, the other to carload shipments of a limited group of other fresh vegetables such as string beans, lettuce and parsnips. And both rates relate only to shipments from points in Texas to points in some but not all of the other states. 3 Such adjustments of rates among vegetables as the Commission here made would appear to be but normal, run-of-the-mine regulations and the fixing of a cheaper transportation rate for one vegetable than for another may well serve an important public need. So long as a railroad is not caused by such regulations to lose money on its over-all business, it is hard to think that it could successfully charge that its property was being taken for public use 'without just compensation.'2 And apparently the railroads rely not on the just compensation but on the Due Process provision of the Fifth Amendment. This appears from their complaint and the cases cited to support their contention. Chief reliance is placed on Northern Pacific R. Co. v. North Dakota, 236 U.S. 585, 35 S.Ct. 429, 59 L.Ed. 735, and a companion case decided the same day, Norfolk & W.R. Co. v. West Virginia, 236 U.S. 605, 35 S.Ct. 437, 59 L.Ed. 745. Both cases involved state statutes fixing railroad rates, one on coal and one on passengers. Both were found to be noncompensatory. Both were held violative of the Due Process Clause of the Fourteenth Amendment. In both the ground was that the rates were 'unreasonable' and 'arbitrary.' The Court was careful to point out and emphasize that there was nothing in the records of those cases to show that there were 'reasonable' grounds on which to justify imposing noncompensatory rates on the railroads. It would not be possible to hold that the vegetable rates here challenged are the result of unreasonable or arbitrary Commission action. 4 The history of regulation of fresh vegetable transportation rates from the south and southwest shows the difficulties the Commission has had in that field. Much of that history can be found in the Commission reports cited below.3 Not only has the Commission had to consider conflicting rate claims as between shippers and carriers; it has also had to resolve disputes over such questions among the carriers themselves. The present rate order is but one of a long series of Commission orders designed to correct defects and injustices that develop from time to time in the general fresh vegetable rate pattern. Among the factors considered by the Commission in fixing these rates have been these: value of the vegetable; comparison of vegetable values; comparisons with rates on the same vegetables in different sections of the country; comparisons with rates on commodities other than vegetables; special characteristics of some vegetables that add to or subtract from expense of transportation; perishability; claim hazards of the carrier as between different vegetables; competing truck rates; and possible harmful effects of rates on vegetable prices and sales. 5 This mere sample of factors that have to be considered in rate cases demonstrates the absolute necessity for considerable flexibility in rate making. For not only are fair decisions as to vegetable rates vital to the welfare of farmers and whole sections of the country; the health and well-being of the Nation are involved. Moreover, Commission power to adjust rates to meet public needs is implicit in the congressional plan for a nationally integrated railroad system. United States v. Lowden, 308 U.S. 225, 230, 60 S.Ct. 248, 84 L.Ed. 208; The New England Divisions Case (Akron, C. & Y.R. Co. v. U.S.) 261 U.S. 184, 43 S.Ct. 270, 67 L.Ed. 605; Railroad Commission of Wisconsin v. Chicago B. & Q.R. Co., 257 U.S. 563, 583—586, 42 S.Ct. 232, 236, 66 L.Ed. 371. And so long as rates as a whole afford railroads just compensation for their over-all services to the public the Due Process Clause should not be construed as a bar to the fixing of noncompensatory rates for carrying some commodities when the public interest is thereby served. 6 Affirmed. 7 Mr. Justice CLARK took no part in the consideration or decision of this case. 8 Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE concurs, dissenting. 9 Baltimore & Ohio R. Co. v. United States, 298 U.S. 349, 56 S.Ct. 797, 80 L.Ed. 1209, established a rule of procedure that entitles a carrier to raise the issue of confiscation in judicial proceedings for review of an order of the Commission, even though it has not tendered the issue in the hearings before the Commission but only on a petition for reconsideration after the order was issued. That rule of procedure was challenged by Mr. Justice Brandeis in an opinion in which three other Justices joined. Id., 298 U.S. at page 381, 56 S.Ct. at page 813. There has been much discussion in the briefs and on oral argument concerning the wisdom and propriety of that rule. Whatever may be concluded on the merits, it is a rule on which litigants are entitled to rely until and unless it is overruled. Appellants properly relied on it here. After the Commission entered this rate order, the appellants filed a petition for reconsideration, offering to prove that the costs of operation under the new rates would exceed the revenues. The District Court therefore erred when it ruled that evidence bearing on the issue of confiscation was inadmissible in these review proceedings because it had not been tendered in the hearings before the Commission. 105 F.Supp. 631. 10 The Court, without deciding that issue, assumes that the tender of proof on the issue of confiscation was timely, but concludes that even if a confiscatory rate were established, the carriers would be entitled to no relief. That ruling is, in my view, quite unjustified on the record before us. 11 Appellants offer to prove that their costs of handling the traffic are greater than the revenues which the traffic will produce under the new rates. We must assume under the Court's ruling that that is the fact. What justification then is there for the Commission forcing the carriers to haul the traffic at less than cost? 12 One will read the record in vain for any clue. The report of the Commission is largely a hodge-podge of statistics dealing with rates on vegetables from Texas, California, Arizona, and New Mexico to eastern and northern points. The Commission was apparently bent on leveling down some of the rates out of Texas to make them more nearly equal to those out of California, Arizona, and New Mexico. The reasons are not disclosed. 13 There is no suggestion or intimation that the vegetable markets were suffering by reason of the Texas rates. 14 Texas growers and shippers complained that the rate structure was unduly prejudicial to them and unduly preferential to growers and shippers in California, Arizona, and New Mexico. The record shows that the former were in competition with the latter in various markets. But the Commission held that there was 'no persuasive evidence' that the Texas rates had an adverse effect on the Texas growers and shippers. The Commission in other words refused to find that the rates were unduly prejudicial under § 3 of the Interstate Commerce Act. 49 U.S.C. § 3, 49 U.S.C.A. § 3. 15 The Commission did, however, find that the Texas rates were unreasonable; and it proceeded to prescribe 'reasonable' rates pursuant to § 15(1) of the Act. 16 Can a confiscatory rate be a 'reasonable' rate under the statutory and constitutional system within which the Commission operates? It is incredible to me that Congress used 'reasonable' in such an odd and unusual sense. The history of ratemaking, reviewed in Northern Pacific R. Co. v. North Dakota, 236 U.S. 585, 35 S.Ct. 429, 59 L.Ed. 735, denies it. Perhaps there will be exceptions. Perhaps dire emergencies will arise, making it necessary in the public interest to compel the transportation of certain commodities at less than cost. But certainly such a step should not be taken without appropriate findings showing why the confiscatory rate is a 'reasonable' one. 17 This controversy on the merits may be insubstantial. The proof of confiscation may fail. It may be established, as one of the appellees contends, that the carriers since 1940 have voluntarily published rates yielding less than half the revenue per car to be yielded by the new rates. But the issues tendered should be tried. If we assume that the prescribed rates are confiscatory, it is, in my view, impossible to say on the present record that they are 'reasonable.' 1 The District Court dismissed because the railroads had not tendered any issue of confiscation or offered any proof of transportation costs until after the Commission had finished its hearings, made findings and entered its rate order. 105 F.Supp. 631. For this reason the District Court declined the railroads' request to hear evidence of transportation costs, a procedural course approved in Baltimore & O.R. Co. v. United States, 298 U.S. 349, 56 S.Ct. 797, 80 L.Ed. 1209, or to hold the case for remand to the Commission for it to make a preliminary appraisal of the facts in line with the suggestion in New York v. United States, 331 U.S. 284, 334—336, 67 S.Ct. 1207, 1233—1234, 91 L.Ed. 1492. Relying on the Court's opinion in the Baltimore & Ohio case, supra, the railroads here contend that dismissal because of their delay in raising the issue before the Commission deprived them of a constitutional right to have a judicial determination of their Fifth Amendment contention. The Commission's answer to this contention is a request that we re-examine the Baltimore & Ohio case, abandon the constitutional principles announced by the majority there and apply the concurring minority views to the facts of this case. Because there is a more appropriate ground for decision we assume, without deciding, that the confiscation issue here was raised in time. 2 The Fifth Amendment provides in part: 'No person shall * * * be deprived of * * * property, without due process of law; nor shall private property be taken for public use, without just compensation.' 3 279 I.C.C. 671 and 284 I.C.C. 206 are the original and rehearing reports on the present rate order. Other reports on the system of vegetable rates are Southwestern Vegetable Case, 200 I.C.C. 355, 209 I.C.C. 606, 214 I.C.C. 63; Southeastern Vegetable Case, 200 I.C.C. 273; Transcontinental Rates and Estimated Weights on Vegetables, 270 I.C.C. 665; Estimated Weights on Lettuce from the Southwest, 276 I.C.C. 647.
34
345 U.S. 206 73 S.Ct. 625 97 L.Ed. 956 SHAUGHNESSY, District Director of Immigration and Naturalization,v.UNITED STATES ex rel. MEZEI. No. 139. Argued Jan. 7 and 8, 1953. Decided March 16, 1953. Mr. Ross L. Malone, Jr., Roswell, N.M., for petitioner. Mr. Jack Wasserman, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This case concerns an alien immigrant permanently excluded from the United States on security grounds but stranded in his temporary haven on Ellis Island because other countries will not take him back. The issue is whether the Attorney General's continued exclusion of respondent without a hearing amounts to an unlawful detention, so that courts may admit him temporarily to the United States on bond until arrangements are made for his departure abroad. After a hearing on respondent's petition for a writ of habeas corpus, the District Court so held and authorized his temporary admission on $5,000 bond.1 The Court of Appeals affirmed that action, but directed reconsideration of the terms of the parole.2 Accordingly, the District Court entered a modified order reducing bond to $3,000 and permitting respondent to travel and reside in Buffalo, New York. Bond was posted and respondent released. Because of resultant serious problems in the enforcement of the immigration laws, we granted certiorari. 344 U.S. 809, 73 S.Ct. 25. 2 Respondent's present dilemma springs from these circumstances: Though, as the District Court observed, '(t)here is a certain vagueness about (his) history', respondent seemingly was born in Gibraltar of Hungarian or Rumanian parents and lived in the United States from 1923 to 1948.3 In May of that year he sailed for Europe, apparently to visit his dying mother in Rumania. Denied entry there, he remained in Hungary for some 19 months, due to 'difficulty in securing an exit permit.' Finally, armed with a quota immigration visa issued by the American Consul in Budapest, he proceeded to France and boarded the Ile de France in Le Havre bound for New York. Upon arrival on February 9, 1950, he was temporarily excluded from the United States by an immigration inspector acting pursuant to the Passport Act as amended and regulations thereunder. Pending disposition of his case he was received at Ellis Island. After reviewing the evidence, the Attorney General on May 10, 1950, ordered the temporary exclusion to be made permanent without a hearing before a board of special inquiry, on the 'basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest.' That determination rested on a finding that respondent's entry would be prejudicial to the public interest for security reasons. But thus far all attempts to effect respondent's departure have failed: Twice he shipped out to return whence he came; France and Great Britain refused him permission to land. The State Department has unsuccessfully negotiated with Hungary for his readmission. Respondent personally applied for entry to about a dozen Latin American countries but all turned him down. So in June 1951 respondent advised the Immigration and Naturalization Service that he would exert no further efforts to depart. In short, respondent sat on Ellis Island because this country shut him out and others were unwilling to take him in. 3 Asserting unlawful confinement on Ellis Island, he sought relief through a series of habeas corpus proceedings. After four unsuccessful efforts on respondent's part, the United States District Court for the Southern District of New York on November 9, 1951, sustained the writ. The District Judge, vexed by the problem of 'an alien who has no place to go', did not question the validity of the exclusion order but deemed further 'detention' after 21 months excessive and justifiable only by affirmative proof of respondent's danger to the public safety. When the Government declined to divulge such evidence, even in camera, the District Court directed respondent's conditional parole on bond.4 By a divided vote, the Court of Appeals affirmed. Postulating that the power to hold could never be broader than the power to remove or shut out and that to 'continue an alien's confinement beyond that moment when deportation becomes patently impossible is to deprive him of his liberty', the court found respondent's 'confinement' no longer justifiable as a means of removal elsewhere, thus not authorized by statute, and in violation of due process.5 Judge Learned Hand, dissenting, took a different view: The Attorney General's order was one of 'exclusion' and not 'deportation'; respondent's transfer from ship to shore on Ellis Island conferred no additional rights; in fact, no alien so situated 'can force us to admit him at all.'6 4 Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control. The Chinese Exclusion Case (Chae Chan Ping v. United States), 1889, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068; Fong Yue Ting v. United States, 1893, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905; United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317; Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586. In the exercise of these powers, Congress expressly authorized the President to impose additional restrictions on aliens entering or leaving the United States during periods of international tension and strife. That authorization, originally enacted in the Passport Act of 1918, continues in effect during the present emergency. Under it, the Attorney General, acting for the President, may shut out aliens whose 'entry would be prejudicial to the interest of the United States'.7 And he may exclude without a hearing when the exclusion is based on confidential information the disclosure of which may be prejudicial to the public interest.8 The Attorney General in this case proceeded in accord with these provisions; he made the necessary determinations and barred the alien from entering the United States. 5 It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. The Japanese Immigrant Case (Kaoru Yamataya v. Fisher), 1903, 189 U.S. 86, 100—101, 23 S.Ct. 611, 614, 47 L.Ed. 721; Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 49—50, 70 S.Ct. 445, 453—454, 94 L.Ed. 616; Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, 598, 73 S.Ct. 472, 478. But an alien on the threshold of initial entry stands on a different footing: 'Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.' United States ex rel. Knauff v. Shaughnessy, supra, 338 U.S. at page 544, 70 S.Ct. at page 313; Nishimura Ekiu v. United States, 1892, 142 U.S. 651, 660, 12 S.Ct. 336, 338, 35 L.Ed. 1146. And because the action of the executive officer under such authority is final and conclusive, the Attorney General cannot be compelled to disclose the evidence underlying his determinations in an exclusion case; 'it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government'. United States ex rel. Knauff v. Shaughnessy, supra, 338 U.S. at page 543, 70 S.Ct. at page 312; Nishimura Ekiu v. United States, supra, 142 U.S. at page 660, 12 S.Ct. at page 338. In a case such as this, courts cannot retry the determination of the Attorney General. United States ex rel. Knauff v. Shaughnessy, supra, 338 U.S. at page 546, 70 S.Ct. at page 314; Ludecke v. Watkins, 1948, 335 U.S. 160, 171—172, 68 S.Ct. 1429, 1434, 1435, 92 L.Ed. 1881. 6 Neither respondent's harborage on Ellis Island nor his prior residence here transforms this into something other than an exclusion proceeding. Concededly, his movements are restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion. But that is true whether he enjoys temporary refuge on land, Nishimura Ekiu v. United States, supra, or remains continuously aboard ship. United States v. Jung Ah Lung, 1888, 124 U.S. 621, 626, 8 S.Ct. 663, 665, 31 L.Ed. 591; Chin Yow v. United States, 1908, 208 U.S. 8, 12, 28 S.Ct. 201, 202, 52 L.Ed. 369. In sum, harborage at Ellis Island is not an entry into the United States. Kaplan v. Tod, 1925, 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585; United States v. Ju Toy, 1905, 198 U.S. 253, 263, 25 S.Ct. 644, 646, 49 L.Ed. 1040; Nishimura Ekiu v. United States, supra, 142 U.S. at page 661, 12 S.Ct. at page 339. For purposes of the immigration laws, moreover, the legal incidents of an alien's entry remain unaltered whether he has been here once before or not. He is an entering alien just the same, and may be excluded if unqualified for admission under existing immigration laws. E.g., Lem Moon Sing v. United States, 1895, 158 U.S. 538, 547—548, 15 S.Ct. 967, 970—971, 39 L.Ed. 1082; United States ex rel. Polymeris v. Trudell, 1932, 284 U.S. 279, 52 S.Ct. 143, 76 L.Ed. 291. 7 To be sure, a lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process. Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, 601, 73 S.Ct. 472, 479; Cf. Delgadillo v. Carmichael, 1947, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17. Only the other day we held that under some circumstances temporary absence from our shores cannot constitutionally deprive a returning lawfully resident alien of his right to be heard. Kwong Hai Chew v. Colding, supra. Chew, an alien seaman admitted by an Act of Congress to permanent residence in the United States, signed articles of maritime employment as chief steward on a vessel of American registry with home port in New York City. Though cleared by the Coast Guard for his voyage, on his return from four months at sea he was 'excluded' without a hearing on security grounds. On the facts of that case, including reference to § 307(d)(2) of the Nationality Act of 1940, 8 U.S.C.A. § 707(d)(2), we felt justified in 'assimilating' his status for constitutional purposes to that of continuously present alien residents entitled to hearings at least before an executive or administrative tribunal. Id., 344 U.S. at pages 596, 599—601, 73 S.Ct. at pages 477—480. Accordingly, to escape constitutional conflict we held the administrative regulations authorizing exclusion without hearing in certain security cases inappicable to aliens so protected by the Fifth Amendment. Id., 344 U.S. at page 600, 73 S.Ct. at page 479. 8 But respondent's history here drastically differs from that disclosed in Chew's case. Unlike Chew who with full security clearance and documentation pursued his vocation for four months aboard an American ship, respondent, apparently without authorization or reentry papers,9 simply left the United States and remained behind the Iron Curtain for 19 months. Moreover, while § 307 of the 1940 Nationality Act regards maritime service such as Chew's to be continuous residence for naturalization purposes, that section deems protracted absence such as respondent's a clear break in an alien's continuous residence here.10 In such circumstances, we have no difficulty in holding respondent an entrant alien or 'assimilated to (that) status' for constitutional purposes. Id., 344 U.S. at page 599, 73 S.Ct. at page 478. That being so, the Attorney General may lawfully exclude respondent without a hearing as authorized by the emergency regulations promulgated pursuant to the Passport Act. Nor need he disclose the evidence upon which that determination rests. United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317. 9 There remains the issue of respondent's continued exclusion on Ellis Island. Aliens seeking entry from contiguous lands obviously can be turned back at the border without more. United States ex rel. Polymeris v. Trudell, 1932, 284 U.S. 279, 52 S.Ct. 143, 76 L.Ed. 291. While the Government might keep entrants by sea aboard the vessel pending determination of their admissibility, resulting hardships to the alien and inconvenience to the carrier persuaded Congress to adopt a more generous course. By statute it authorized, in cases such as this, aliens' temporary removal from ship to shore.11 But such temporary harborage, an act of legislative grace, bestows no additional rights. Congress meticulously specified that such shelter ashore 'shall not be considered a landing' nor relieve the vessel of the duty to transport back the alien if ultimately excluded.12 And this Court has long considered such temporary arrangements as not affecting an alien's status; he is treated as if stopped at the border. Nishimura Ekiu v. United States, 1892, 142 U.S. 651, 661—662, 12 S.Ct. 336, 339, 35 L.Ed. 1146; United States v. Ju Toy, 1905, 198 U.S. 253, 263, 25 S.Ct. 644, 646, 49 L.Ed. 1040; Kaplan v Tod, 1925, 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585. 10 Thus we do not think that respondent's continued exclusion deprives him of any statutory or constitutional right. It is true that resident aliens temporarily detained pending expeditious consummation of deportation proceedings may be released on bond by the Attorney General whose discretion is subject to judicial review. Carlson v. Landon, 1952, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547. By that procedure aliens uprooted from our midst may rejoin the community until the Government effects their leave.13 An exclusion proceeding grounded on danger to the national security, however, presents different considerations; neither the rationale nor the statutory authority for such release exists.14 Ordinarily to admit an alien barred from entry on security grounds nullifies the very purpose of the exclusion proceeding; Congress in 1950 declined to include such authority in the statute.15 That exclusion by the United States plus other nations inhospitality results in present hardship cannot be ignored. But, the times being what they are, Congress may well have felt that other countries ought not shift the onus to us; that an alien in respondent's position is no more ours than theirs. Whatever our individual estimate of that policy and the fears on which it rests, respondent's right to enter the United States depends on the congressional will, and courts cannot substitute their judgment for the legislative mandate. Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 590—591, 72 S.Ct. 512, 519, 96 L.Ed. 586. 11 Reversed. 12 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting. 13 Mezei came to this country in 1923 and lived as a resident alien in Buffalo, New York, for twenty-five years. He made a trip to Europe in 1948 and was stopped at our shore on his return in 1950. Without charge of or conviction for any crime, he was for two years held a prisoner on Ellis Island by order of the Attorney General. Mezei sought habeas corpus in the District Court. He wanted to go to his wife and home in Buffalo. The Attorney General defended the imprisonment by alleging that it would be dangerous to the Nation's security to let Mezei go home even temporarily on bail. Asked for proof of this, the Attorney General answered the judge that all his information was 'of a confidential nature' so much so that telling any of it or even telling the names of any of his secret informers would jeopardize the safety of the Nation. Finding that Mezei's life as a resident alien in Buffalo had been 'unexceptional' and that no facts had been proven to justify his continued imprisonment, the District Court granted bail. The Court of Appeals approved. Now this Court orders Mezei to leave his home and go back to his island prison to stay indefinitely, maybe for life. 14 Mr. Justice JACKSON forcefully points out the danger in the Court's holding that Mezei's liberty is completely at the mercy of the unreviewable discretion of the Attorney General. I join Mr. Justice JACKSON in the belief that Mezei's continued imprisonment without a hearing violates due process of law. 15 No society is free where government makes one person's liberty depend upon the arbitrary will of another. Dictatorships have done this since time immemorial. They do now. Russian laws of 1934 authorized the People's Commissariat to imprison, banish and exile Russian citizens as well as 'foreign subjects who are socially dangerous.'* Hitler's secret police were given like powers. German courts were forbidden to make any inquiry whatever as to the information on which the police acted. Our Bill of Rights was written to prevent such oppressive practices. Under it this Nation has fostered and protected individual freedom. The Founders abhorred arbitrary one-man imprisonments. Their belief was—our constitutional principles are that no person of any faith, rich or poor, high or low, native or foreigner, white or colored, can have his life, liberty or property taken 'without due process of law.' This means to me that neither the federal police nor federal prosecutors nor any other governmental official, whatever his title, can put or keep people in prison without accountability to courts of justice. It means that individual liberty is too highly prized in this country to allow executive officials to imprison and hold people on the basis of information kept secret from courts. It means that Mezei should not be deprived of his liberty indefinitely except as the result of a fair open court hearing in which evidence is appraised by the court, not by the prosecutor. 16 Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER joins, dissenting. 17 Fortunately it still is startling, in this country, to find a person held indefinitely in executive custody without accusation of crime or judicial trial. Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint. Under the best tradition of Anglo-American law, courts will not deny hearing to an unconvicted prisoner just because he is an alien whose keep, in legal theory, is just outside our gates. Lord Mansfield, in the celebrated case holding that slavery was unknown to the common law of England, ran his writ of habeas corpus in favor of an alien, an African Negro slave, and against the master of a ship at anchor in the Thames.1 I. 18 What is our case?2 In contemplation of law, I agree, it is that of an alien who asks admission to the country. Concretely, however, it is that of a lawful and law-abiding inhabitant of our country for a quarter of a century, long ago admitted for permanent residence, who seeks to return home. After a foreign visit to his aged and ailing mother that was prolonged by disturbed conditions of Eastern Europe, he obtained a visa for admission issued by our consul and returned to New York. There the Attorney General refused to honor his documents and turned him back as a menace to this Nation's security. This man, who seems to have led a life of unrelieved insignificance, must have been astonished to find himself suddenly putting the Government of the United States in such fear that it was afraid to tell him why it was afraid of him. He was shipped and reshipped to France, which twice refused him landing. Great Britain declined, and no other European country has been found willing to open its doors to him. Twelve countries of the American Hemisphere refused his applications. Since we proclaimed him a Samson who might pull down the pillars of our temple, we should not be surprised if peoples less prosperous, less strongly established and less stable feared to take him off our timorous hands. With something of a record as an unwanted man, neither his efforts nor those of the United States Government any longer promise to find him an abiding place. For nearly two years he was held in custody of the immigration authorities of the United States at Ellis Island, and if the Government has its way he seems likely to be detained indefinitely, perhaps for life, for a cause known only to the Attorney General. 19 Is respondent deprived of liberty? The Government answers that he was 'transferred to Ellis Island on August 1, 1950 for safekeeping,' and 'is not being detained in the usual sense, but is in custody solely to prevent him from gaining entry into the United States in violation of law. He is free to depart from the United States to any country of his choice.' Government counsel ingeniously argued that Ellis Island is his 'refuge' whence he is free to take leave in any direction except west. That might mean freedom, if only he were an amphibian! Realistically, this man is incarcerated by a combination of forces which keeps him as effectually as a prison, the dominant and proximate of these forces being the United States immigration authority. It overworks legal fiction to say that one is free in law when by the commonest of common sense he is bound. Despite the impeccable legal logic of the Government's argument on this point, it leads to an artificial and unreal conclusion.3 We must regard this alien as deprived of liberty, and the question is whether the deprivation is a denial of due process of law. 20 The Government on this point argues that 'no alien has any constitutional right to entry into the United States'; that 'the alien has only such rights as Congress sees fit to grant in exclusion proceedings'; that 'the so-called detention is still merely a continuation of the exclusion which is specifically authorized by Congress'; that since 'the restraint is not incidental to an order (of exclusion) but is itself the effectuation of the exclusion order, there is no limit to its continuance' other than statutory, which means no limit at all. The Government all but adopts the words of one of the officials responsible for the administration of this Act who testified before a congressional committee as to an alien applicant, that 'He has no rights.'4 21 The interpretations of the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law, come about to this: reasonable general legislation reasonably applied to the individual. The question is whether the Government's detention of respondent is compatible with these tests of substance and procedure. 22 II. Substantive Due Process. 23 Substantively, due process of law renders what is due to a strong state as well as to a free individual. It tolerates all reasonable measures to insure the national safety, and it leaves a large, at times a potentially dangerous, latitude for executive judgment as to policies and means.5 24 After all, the pillars which support our liberties are the three branches of government, and the burden could not be carried by our own power alone. Substantive due process will always pay a high degree of deference to congressional and executive judgment, especially when they concur, as to what is reasonable policy under conditions of particular times and circumstances. Close to the maximum of respect is due from the judiciary to the political departments in policies affecting security and alien exclusion. Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586. 25 Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will. Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government. 26 Nor do I doubt that due process of law will tolerate some impounding of an alien where it is deemed essential to the safety of the state. Even the resident, friendly alien may be subject to executive detention without bail, for a reasonable period, pending consummation of deportation arrangements. Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547. The alien enemy may be confined or his property seized and administered because hostility is assumed from his continued allegiance to a hostile state. Cf. Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881; Zittman v. McGrath, 341 U.S. 446, 71 S.Ct. 832, 95 L.Ed. 1096, and 341 U.S. 471, 71 S.Ct. 846, 95 L.Ed. 1112. 27 If due process will permit confinement of resident aliens friendly in fact because of imputed hostility, I should suppose one personally at war with our institutions might be confined, even though his state is not at war with us. In both cases, the underlying consideration is the power of our system of government to defend itself, and changing strategy of attack by infiltration may be met with changed tactics of defense. 28 Nor do I think the concept of due process so paralyzing that it forbids all detention of an alien as a preventive measure against threatened dangers and makes confinement lawful only after the injuries have been suffered. In some circumstances, even the citizen in default of bail has long been subject to federal imprisonment for security of the peace and good behavior.6 While it is usually applied for express verbal threats, no reason is known to me why the power is not the same in the case of threats inferred by proper procedures from circumstances. The British, with whom due process is a habit, if not a written constitutional dictum, permit a court in a limited class of cases to pass a 'sentence of preventive detention' if satisfied that it is expedient for the protection of the public.7 29 I conclude that detention of an alien would not be inconsistent with substantive due process, provided—and this is where my dissent begins—he is accorded procedural due process of law. 30 III. Procedural Due Process. 31 Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which compromise substantive law. 32 If it be conceded that in some way this alien could be confined, does it matter what the procedure is? Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration. Cf. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317, which was a near miss, saved by further administrative and congressional hearings from perpetrating an injustice. See Knauff, The Ellen Knauff Story (New York) 1952. 33 Our law may, and rightly does, place more restrictions on the alien than on the citizen. But basic fairness in hearing procedures does not vary with the status of the accused. If the procedures used to judge this alien are fair and just, no good reason can be given why they shoud not be extended to simplify the condemnation of citizens. If they would be unfair to citizens, we cannot defend the fairness of them when applied to the more helpless and handicapped alien. This is at the root of our holdings that the resident alien must be given a fair hearing to test an official claim that he is one of a deportable class. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616. 34 The most scrupulous observance of due process, including the right to know a charge, to be confronted with the accuser, to cross-examine informers and to produce evidence in one's behalf, is especially necessary where the occasion of detention is fear of future misconduct, rather than crimes committed. Both the old proceeding by which one may be bound to keep the peace and the newer British 'preventive detention' are safeguarded with full rights to judicial hearings for the accused. On the contrary, the Nazi regime in Germany installed a system of 'protective custody' by which the arrested could claim no judicial or other hearing process,8 and as a result the concentration camps were populated with victims of summary executive detention for secret reasons. That is what renders Communist justice such a travesty. There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law. Quite unconsciously, I am sure, the Government's theory of custody for 'safekeeping' without disclosure to the victim of charges, evidence, informers or reasons, even in an administrative proceeding, has unmistakable overtones of the 'protective custody' of the Nazis more than of any detaining procedure known to the common law. Such a practice, once established with the best of intentions, will drift into oppression of the disadvantaged in this country as surely as it has elsewhere. That these apprehensive surmises are not 'such stuff as dreams are made on' appears from testimony of a top immigration official concerning an applicant that 'He has no rights.' 35 Because the respondent has no right of entry, does it follow that he has no rights at all? Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to the authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift in a rowboat. Would not such measures be condemned judicially as a deprivation of life without due process of law? Suppose the authorities decide to disable an alien from entry by confiscating his valuables and money. Would we not hold this a taking of property without due process of law? Here we have a case that lies between the taking of life and the taking of property; it is the taking of liberty. It seems to me that this, occurring within the United States or its territorial waters, may be done only by proceedings which meet the test of due process of law. 36 Exclusion of an alien without judicial hearing, of course, does not deny due process when it can be accomplished merely by turning him back on land or returning him by sea. But when indefinite confinement becomes the means of enforcing exclusion, it seems to me that due process requires that the alien be informed of its grounds and have a fair chance to overcome them. This is the more due him when he is entrapped into leaving the other shore by reliance on a visa which the Attorney General refuses to honor. 37 It is evident that confinement of respondent no longer can be justified as a step in the process of turning him back to the country whence he came. Confinement is no longer ancillary to exclusion; it can now be justified only as the alternative to normal exclusion. It is an end in itself. 38 The Communist conspiratorial technique of infiltration poses a problem which sorely tempts the Government to resort to confinement of suspects on secret information secretly judged. I have not been one to discount the Communist evil. But my apprehensions about the security of our form of government are about equally aroused by those who refuse to recognize the dangers of Communism and those who will not see danger in anything else. 39 Congress has ample power to determine whom we will admit to our shores and by what means it will effectuate its exclusion policy. The only limitation is that it may not do so by authorizing United States officers to take without due process of law the life, the liberty or the property of an alien who has come within our jurisdiction; and that means he must meet a fair hearing with fair notice of the charges.9 40 It is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone. 1 1951, 101 F.Supp. 66. 2 2 Cir., 1952, 195 F.2d 964. 3 101 F.Supp. at page 67. 4 101 F.Supp. at pages 67, 70; R. 26—27. 5 195 F.2d at pages 967, 968. 6 Id., 195 F.2d at page 970. 7 Section 1 of the Act of May 22, 1918, c. 81, 40 Stat. 559, as amended by the Act of June 21, 1941, c. 210, § 1, 55 Stat. 252, 22 U.S.C. § 223, 22 U.S.C.A. § 223, provides in pertinent part: 'When the United States is at war or during the existence of the national emergency proclaimed by the President on May 27, 1941, or as to aliens whenever there exists a state of war between, or among, two or more states, and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this Act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful— '(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe; * * *.' That authorization has been extended to cover the dates relevant in this case. 66 Stat. 54, 57, 96, 137, 330, 332. Pursuant to that authority, Presidential Proclamation No. 2523, 6 Fed.Reg. 5821, as promulgated in 1941, U.S.Code Cong.Service 1941, p. 883, in part provided: 'No alien shall be permitted to enter the United States if it appears to the satisfaction of the Secretary of State that such entry would be prejudicial to the interests of the United States as provided in the rules and regulations hereinbefore authorized to be prescribed by the Secretary of State, with the concurrence of the Attorney General.' The Secretary of State, with the concurrence of the Attorney General, issued applicable regulations condified as Part 175 of 8 CFR. Section 175.53 defines eleven categories of aliens whose entry is 'deemed prejudicial to the interests of the United States.' That delegation of authority has been upheld. United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317. The regulations were ratified and confirmed by Presidential Proclamation No. 2850, 14 Fed.Reg. 5173, promulgated August 17, 1949, U.S.Code Cong.Service 1949, p. 2618. 8 8 CFR § 175.57 provides: § 175.57 Entry not permitted in special cases. (a) Any alien, even though in possession of a permit to enter, or exempted under §§ 175.41 to 175.62, inclusive, from obtaining a permit to enter, may be excluded temporarily if at the time he applies for admission at a port of entry it appears that he is or may be excludable under one of the categories set forth in § 175.53. The official excluding the alien shall immediately report the facts to the head of his department, who will communicate such report to the Secretary of State. Any alien so temporarily excluded by an official of the Department of Justice shall not be admitted and shall be excluded and deported unless the Attorney General, after consultation with the Secretary of State, is satisfied that the admission of the alien would not be prejudicial to the interests of the United States. Any alien so temporarily excluded by any other official shall not be admitted and shall be excluded and deported unless the Secretary of State is satisfied that the admission of the alien would not be prejudicial to the interests of the United States. '(b) In the case of an alien temporarily excluded by an official of the Department of Justice on the ground that he is, or may be, excludable under one or more of the categories set forth in § 175.53, no hearing by a board of special inquiry shall be held until after the case is reported to the Attorney General and such a hearing is directed by the Attorney General or his representative. In any special case the alien may be denied a hearing before a board of special inquiry and an appeal from the decision of that board if the Attorney General determines that he is excludable under one of the categories set forth in § 175.53 on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest.' 9 See 8 U.S.C. § 210, 8 U.S.C.A. § 210. Of course, neither a reentry permit, issuable upon proof of prior lawful admission to the United States, § 210(b), nor an immigration visa entitles an otherwise inadmissible alien to entry. §§ 210(f), 202(g). An immigrant is not unaware of this; § 202(g) directs those facts to be 'printed conspicuously upon every immigration visa.' For a recent study of entry procedures with recommendations, see Report of the President's Commission on Immigration and Naturalization (1953), c. 10. 10 8 U.S.C. § 707, 8 U.S.C.A. § 707; United States v. Larsen, 2 Cir., 1947, 165 F.2d 433. 11 8 U.S.C. § 151, 8 U.S.C.A. § 151. 12 8 U.S.C. §§ 151, 154, 8 U.S.C.A. §§ 151, 154. 13 8 U.S.C. (Supp. V) § 156, 8 U.S.C.A. § 156. We there noted that 'the problem of habeas corpus after unusual delay in deportation hearings is not involved in this case.' 342 U.S. at page 546, 72 S.Ct. at page 537. (Emphasis added.) 14 8 U.S.C. § 154, 8 U.S.C.A. § 154, permits temporary suspension of deportation of excluded aliens whose testimony is needed on behalf of the United States. Manifestly respondent does not fall within that class. While the essence of that provision is retained in § 237(d) of the Immigration and Nationality Act of 1952, 66 Stat. 202, 8 U.S.C.A. § 1227(d), § 212(d)(5) of that Act, 66 Stat. 188, 8 U.S.C.A. § 1182(d)(5), vests new and broader discretion in the Attorney General. Cf. 8 U.S.C. §§ 136(p, q), 8 U.S.C.A. § 136(p, q); 8 U.S.C. (Supp. V) § 137—5(a, b), 8 U.S.C.A. § 137—5(a, b). Those provisions are not now here. 15 See S. Rep. No. 1515, 81st Cong., 2d Sess. 643—644. * Decree of the Central Executive Committee and Council of People's Commissars, U.S.S.R., 5 Nov. 1934; Collection of Laws, U.S.S.R., 1935, No. 11, Art. 84. Hazard, Materials on Soviet Law, (194), 16. See Hazard, Reforming Soviet Criminal Law, 29 Jour.Crim.Law and Crim. 157, 168—169 (1939). See also Berman, Principles of Soviet Criminal Law, 56 Yale L.J. 803 (1947). 1 Somersett's Case, 20 How.St.Tr. 1; 2 Campbell, Lives of the Chief Justices, 418; Fiddes, Lord Mansfield and The Sommersett Case, 50 L.Q.Rev. 499. 2 I recite facts alleged in the petition for the writ. Since the Government declined to try the case on the merits, I think we must consider the question on well-pleaded allegations of the petition. Petitioner might fail to make good on a hearing; the question is, must he fail without one? 3 Mr. Justice Holmes, for the Court, said in Chin Yow v. United States, 208 U.S. 8, 12—13, 28 S.Ct. 201, 202, 52 L.Ed. 369: 'If we regard the petitioner, as in Ju Toy's Case it was said that he should be regarded, as if he had been stopped and kept at the limit of our jurisdiction (198 U.S. (253) 263, 25 S.Ct. 644, 49 L.Ed. (1040) 1044), still it would be difficult to say that he was not imprisoned, theoretically as well as practically, when to turn him back meant that he must get into a vessel against his wish and be carried to China. The case would not be that of a person simply prevented from going in one direction that he desired and had a right to take, all others being left open to him, a case in which the judges were not unanimous in Bird v. Jones, 7 Q.B. 742. But we need not speculate upon niceties. It is true that the petitioner gains no additional right of entrance by being allowed to pass the frontier in custody for the determination of his case. But, on the question whether he is wrongly imprisoned, we must look at the actual facts. De facto he is locked up until carried out of the country against his will.' 4 Testimony of Almanza Tripp, an immigration service official, before the Senate Subcommittee on Immigration on February 15, 1950, included the following: '* * * Now, when we have a case of that sort, where central registry contains something derogatory of that nature, I do not believe we should make a finding of admissibility until it has been disproved. But the evidence that they had in central registry would not be sufficient for our Service to exclude by the normal board of special inquiry proceedings, because those proceedings must be conducted in a manner in which they could not be subject to attack in a court of the United States. 'You may say that it is unfair to the applicant not to give him that protection, but you must remember that the applicant is an applicant. He has no rights * * *.' (Hearings before the Subcommittee on Amendments to the Displaced Persons Act, Senate Committee on the Judiciary, 81st Cong., 1st and 2d Sessions 665.) 5 Cf. Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194. 6 18 U.S.C. § 3043, 18 U.S.C.A. § 3043; cf. Criminal Code of New York, 66 McKinney's Consolidated Laws, c. II, § 84. 7 Criminal Justice Act, 1948, § 21(2). 8 Hermann Go ring, on cross-examination, made the following statements: '* * * (T)hose who had committed some act of treason against the new state, or those who might be proved to have committed such an act, were naturally turned over to the courts. The others, however, of whom one might expect such acts, but who had not yet committed them, were taken into protective custody, and these were the people who were taken to concentration camps. * * * Likewise, if for political reasons * * * someone was taken into protective custody, that is, purely for reasons of state, this could not be reviewed or stopped by any court.' He claimed (though the claim seemed specious) that twenty-four hours after being put in concentration camps they were informed of the reasons and after forty-eight hours were allowed an attorney. 'But this by no means rescinded my order that a review was not permitted by the courts of a politically necessary measure of protective custody. These people were simply to be given an opportunity of making a protest.' 9 International Military Tribunal Proceedings 420—421 (March 18, 1946). 9 The trial court sought to reconcile due process for the individual with claims of security by suggesting that the Attorney General disclose in camera enough to enable a judicial determination of the legality of the confinement. The Attorney General refused. I do not know just how an in camera proceeding would be handled in this kind of case. If respondent, with or without counsel, were present, disclosures to them might well result in disclosures by them. If they are not allowed to be present, it is hard to see how it would answer the purpose of testing the Government's case by cross-examination or counter- evidence, which is what a hearing is for. The questions raised by the proposal need not be discussed since they do not call for decision here.
34
345 U.S. 295 73 S.Ct. 706 97 L.Ed. 1020 UNITED STATESv.PUBLIC UTILITIES COMMISSION OF CALIFORNIA et al. MINERAL COUNTY, NEVADA v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA et al. Nos. 205, 206. Argued Jan. 14, 1953. Decided April 6, 1953. Rehearing Denied May 18, 1953. See 345 U.S. 961, 73 S.Ct. 935. [Syllabus from pages 295-296 intentionally omitted] No. 205: Walter J. Cummings, Jr., Sol. Gen., Washington, D.C., for petitioner. Mr. Boris H. LaKusta, San Francisco, Cal., for respondents. No. 206: Mr. L. E. Blaisdell, Hawthorne, Nev., for petitioner. Mr. Henry W. Coil, Riverside, Cal., for respondents. Mr. Justice REED delivered the opinion of the Court. 1 Respondent California Electric Power Company produces electricity in California, partially by hydroelectric projects licensed under Part I of the Federal Power Act, 41 Stat. 1063, as amended by Title II of the Public Utility Act of 1935, 49 Stat. 838, 16 U.S.C. § 791a et seq., 16 U.S.C.A. § 791a et seq., and markets the greater portion of it, subject to respondent Public Utilities Commission's authority, in that state. The jurisdictional dispute which is our present concern relates only to certain power sales by the Company to the Navy Department and to Mineral County, Nevada, for consumption there. This power, following production, is transmitted at 55,000 volts to the Company's Mill Creek substation in California, about 25 miles from the border, on its own lines. There it is figuratively taken over by the Navy and by the County, and delivered on their lines at the same high voltage to Hawthorne, Nevada, where it is stepped down for local distribution and consumption. The Navy's power is used at its ammunition depot, largely in official industrial operations; between 15% and 29%, however, is distributed for consumption in the private households and enterprises of tenants at the Navy's low-cost housing project nearby. These sales are metered individually and each purchaser is billed according to his own use. The power purchased by the County is all resold to local consumers, with the exception of minor line losses and official use. 2 The Navy's contract for purchase of the power was negotiated in 1943, and provided for termination on 60-day notice; the County's was entered into in 1945 for a stated period of three years. In 1947 the Power Company applied to the State Commission for a general rate increase which, after hearings at which the Navy was represented, was granted. Thereafter, the Company terminated its Navy contract and failed to renew that with the County, giving notice of its intention to apply the new schedule to these sales. Both purchasers demurred, and the Company reapplied to the State Commission for a ruling as to the applicability of the general schedule to these particular operations. After some early state exploratory hearings, the Federal Power Commission, on February 15, 1950, issued an order to the Company to show cause as to why the rates were not subject to exclusive federal jurisdiction. Thus joined, the issues were heard by both agencies at a joint proceeding on March 20 and 21, 1950. Both eventually decided in favor of their own asserted authority.1 The State Commission's supporting opinion was denied review by the California Supreme Court on January 21, 1952, thus affirming its holding, while that of the Federal Power Commission was likewise approved by the Federal Court of Appeals for the Ninth Circuit, California Electric Power Co v. Federal Power Commission, 199 F.2d 206. As a federal question concerning the applicability of Part II of the Act was raised, certiorari was granted, 344 U.S. 810, 73 S.Ct. 37, to bring the record here from the state proceedings under 28 U.S.C. § 1257(3), 28 U.S.C.A. § 1257(3). I. 3 Federal authority, which we think obtains, is asserted under Part II of the Federal Power Act. This applies 'to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce'. § 201(b). Regulation of the rates of such sales—other types of authority in connection with such interstate transmission operations are granted in other sections—rests on §§ 205(a)2 and 206(a).3 The preliminary issue as to whether the operations in question fall within the concept of interstate commerce, on which the federal power initially depends, can be shortly disposed of, for Powell v. United States Cartridge Co., 339 U.S. 497, 509—515, 70 S.Ct. 755, 761—765, 94 L.Ed. 1017, firmly established that commerce includes the transportation of public property, while the irrelevance of the fact that this electricity is transmitted across the state boundary over lines owned by the Navy and by the County, as purchasers, may be seen from Jersey Central Power & Light Co. v. Federal Power Commission, 319 U.S. 61, 69, 71, 63 S.Ct. 953, 957, 958, 87 L.Ed. 1258, and Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 62 S.Ct. 384, 86 L.Ed. 371. 4 The most serious contentions pressed in opposition to application of Part II, arise from the self-limiting statement therein that the Act is 'to extend only to those matters which are not subject to regulation by the States.'4 So respondents contend that Power Commission jurisdiction only begins where the local regulatory power ends, and point to Part I, § 20, as supporting their contention that the limitation applies to the facts of this case. Section 20 provides that when power from projects licensed under Part I, which that energy sold to the Navy and the County includes, 5 'shall enter into interstate or foreign commerce the rates * * * and the service * * * by any * * * licensee * * * or by any person, corporation, or association purchasing power from such licensee for sale and distribution or use in public service shall be reasonable * * * to the customer * * *; and whenever any of the States directly concerned has not provided a commission or other authority to enforce the requirements of this section within such State * * * or such States are unable to agree through their properly constituted authorities on the services * * * or on the rates * * * jurisdiction is hereby conferred upon the commission * * * to regulate * * * so much of the services * * * and of the rates * * * therefor as constitute interstate or foreign commerce.' 6 Both Nevada and California have regulatory agencies with certain rate powers. And we may assume, though the Government asserts otherwise, that both agencies can enforce reasonable rate orders and have not disagreed.5 Respondents point to this as satisfying § 20, and thus ousting any Part II regulation. In short, they contend—what at first blush may appear anomalous—that federal rate jurisdiction under Part II may be prohibited by the fact that some portion of the power sold originated in hydroelectric projects federally licensed under Part I. We do not agree. 7 Admittedly, § 20 contemplated state regulation. And it may well be, as indicated by the congressional hearings,6 that Congress quite frankly chose the local authorities to regulate the bulk of interstate sales of electricity from licensed projects. In fact, a contrary view would have been almost astonishing as an historical proposition, for neither the large interstate operations of electric utilities that have developed during the last thirty years, nor the concomitant desirability of federal regulation, could have been foreseen in 1920. Long-range transmission was not then adequately developed, nor had the various local utilities by then undergone the integration into large centralized systems which later came about.7 So we may assume that Congress, as a policy judgment, accepted and adapted the substantial tradition of local utility regulation to power production licensed under the federal Act. 8 But there is no evidence that this was done with any firm intent to settled with the states a power essentially national. For whatever views of the draftsmen of § 20 as to the efficacy of state regulation, the jurisdictional lines between local and national authority were not finally determined until this Court's opinion in Public Utilities Commission v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549. This decision followed the Federal Water Power Act by some seven years. In short, that case established what has unquestionably become a fixed premise of our constitutional law but what was not at all clear in 1920, that the Commerce Clause forbade state regulation of some utility rates. State power was held not to extend to an interstate sale 'in wholesale quantities, not to consumers, but to distributing companies for resale to consumers'. 273 U.A. at page 89, 47 S.Ct. at page 296. Attleboro reiterated and accepted the holding of Pennsylvania Gas Co. v. Public Service Commission, 252 U.S. 23, 40 S.Ct. 279, 64 L.Ed. 434, that sales across the state line direct to consumers is a local matter within the authority of the agency of the importing state. But it prohibited regulation of wholesale sales for resale by either interested commission. 9 Respondents seek to escape that doctrine, however, by pointing to the fact that there was not there involved sales of electricity produced at a project licensed under Part I. They admit that absent § 20 of that Part, the later Part II authority would apply exclusively and determine the result. But, they say, § 20 creates an exception, which the language of Attleboro did not reach, for hydroelectric energy transmitted across state lines under the aegis of coordinated state regulation. In short, it is alleged that § 20 'conferred jurisdiction' on the states. 10 We do not agree. Attleboro declared state regulation of interstate transmission of power for resale forbidden as a direct burden on commerce. The states may act as to such a subject only when Congress has specifically granted permission for the exercise of this state power over articles moving interstate which would otherwise be immune. In Re Rahner, 140 U.S. 545, 560—562, 11 S.Ct. 865, 868—869, 35 L.Ed. 572.8 Section 20 cannot bear this interpretation; it did not establish the source of the energy as a significant factor determining whether state or federal authority applied. It is quite different from those few unique federal statutes this Court has heretofore considered, 'subjecting interstate commerce * * * to present and future state prohibitions,' or regulation, James Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 326, 37 S.Ct. 180, 185, 61 L.Ed. 326, in the exercise of the constitutional commerce power. Its language indicates no consideration or desire to alter the limits of state power otherwise imposed by the Commerce Clause; it merely states that the federal power shall not be invoked unless certain conditions of state inability to regulate obtain.9 Section 20 quite obviously is not based on any recognition of the constitutional barrier, but rather assumes what Attleboro held did not exist—state authority to reach interstate sales of energy for resale; its sole concern is the application of federal regulation on the possible failure of the states to empower their regulatory agencies or their inability to agree. 11 Nor can it soundly be said that Congress in § 20 of Part I charged the States with responsibility of regulating rates of interstate sales of electricity through the use of the federal power over government property. U.S.Const., Art. 4, § 3, cl. 2. As indicated in our discussion of the commerce power, there was in 1920 when § 20 was enacted no full appreciation of the limits of state power over sales of electricity for export or import for resale. So that language of § 20 required reasonable rates to consumers of electricity moving interstate and then added the provision that when no state commission was provided to enforce reasonable rates, or the states interested could not agree, the Federal Power Commission could act.10 We do not think such an arrangement for water power electricity as Part I, § 20, provides can be held to block the general authority of Part II. See note 13, infra. 12 The actions of the Congress following the Attleboro decision do not reflect any different interpretation of § 20. We note some interest in the application of that section in the light of the opinion, but nothing that is decisive of respondent's contentions. In 1929, Senator Couzens introduced an amendment to his then pending bill, S. 6, 71st Cong., 1st Sess., to establish federal regulation of communications. The amendment, § 47 et seq., would have established a federal rate authority over all interstate power sales. 'Power' was defined, § 47(a)(4), to include electric energy, 'whether or not produced by a licensee under the Federal Water Power Act.' The bill was referred to Committee, but Congress took no final action.11 In the next year, the same Committee held hearings on S.Res. 80, concerning a purported breakdown in the investigative powers of the Federal Power Commission as it then was constituted. The decision of the Commission of February 28, 1929, reported F.P.C. Ninth Ann.Rep.119, was introduced.12 This argued that, as a result of Attleboro, the Commission had exclusive jurisdiction over rates of interstate wholesale-for-resale sales of licensed hydroelectric power, until displaced by a § 20 agreement of the interested states which received congressional approval as a compact.13 13 The first positive congressional action in the field, of course, was the Federal Power Act of 1935. The sweep of the statute is wholly inconsistent with any asserted state power as fixed by § 20 of the 1920 Act. We have examined the legislative history; its purport is quite clear. Part II was intended to 'fill the gap'—the phrase is repeated many times in the hearings, congressional debates and contemporary literature—left by Attleboro in utility regulation. Congress interpreted that case as prohibiting state control of wholesale rates in interstate commerce for resale, and so armed the Federal Power Commission with precisely that power.14 There is nothing to indicate that Congress' conception of the States' disability in 1935, or of the power it gave the Commission by Part II, did not include Part I electricity. In fact, the unqualified statements concerning Part II favor the opposite construction, for we find the Act explained time and again as empowering the agency with rate authority over interstate wholesale sales for resale; not once is this authority spoken of as one conditioned on the electricity concerned having been produced by steam generators or at nonlicensed dams.15 14 This would largely determine our interpretation of the ambiguous reference to 'matters * * * subject to regulation by the States', § 201(a), if nothing more were available to work with. However, there is other proof that Congress did not have in mind § 20-type state regulation. The limiting clause is spoken of only as protecting state regulation of local affairs, including rates of intrastate and interstate-for-consumption sales: 'Facilities for local distribution and for the production and transmission of energy solely for one's own use and not for resale are excluded.' Hearings, House Committee on Interstate and Foreign Commerce, on H.R.5423, 74th Cong., 1st Sess. 385.16 The phrase is not once mentioned as the distinct affirmation of state power over interstate sales-for-resale under § 20 that respondents apparently would recognize it to be. There are indeed further reasons for rejecting respondents' construction of § 201(a). The nature of the generating facilities, in the first place, has no functional significance for rate regulation; the same considerations that lead Congress to enact federal authority over interstate electricity in general would have been similarly applicable to power generated at licensed projects. Secondly, contemporary literature was frankly divided over whether any power over interstate sales for resale remained with the states after Attleboro.17 We cannot assume that Congress enacted Part II with the purpose of permitting the states to regulate hydroelectric energy through § 20. This is especially so in view of the dearth of legislative discussion of the matter.18 15 So we conclude that the limitations of § 201(a) on federal regulation cannot, and were not intended to, preserve an exclusive state regulation of wholesale hydroelectric sales across state borders. Even if we conceived of the matter as one peculiarly limited to the statutory wording of § 201(a), our statement that '(e)xceptions to the primary grant of jurisdiction in the section are to be strictly construed', Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682, 690—691, 67 S.Ct. 1482, 1487, 91 L.Ed. 1742, would be as applicable here as to § 1(b) of the Natural Gas Act, 15 U.S.C.A. § 717(b). 'Production' and 'distribution' are elsewhere specifically excluded from Commission jurisdiction, § 201(b); the phrase relied on in § 201(a) was originally drafted as a declaration of 'policy,' and the rewording which gave it its present more succinct form was unaccompanied by any 'mention (of) this change as one of substance'. Jersey Central Power & Light Co. v. Federal Power Commission, 319 U.S. 61, 77, 63 S.Ct. 953, 961, 87 L.Ed. 1258, referring to H.R.Rep.No.1318, 74th Cong., 1st Sess., p. 26. 'It cannot nullify a clear and specific grant of jurisdiction, even if the particular grant seems inconsistent with the broadly expressed purpose.' Connecticut Light & Power Co. v. Federal Power Commission, 324 U.S. 515, 527, 65 S.Ct. 749, 754, 89 L.Ed. 1150. To conceive of it now as a bench mark of the Commission's power, or an affirmation of state authority over any interstate sales for resale, would be to speculate about a congressional purpose for which there is no support. 16 Part II is a direct result of Attleboro. They are to be read together. The latter left no power in the states to regulate licensees' sales for resale in interstate commerce, while the former established federal jurisdiction over such sales. Discussion of the constitutional problem as reflected in that statute and the Natural Gas Act in recent cases support this conclusion. Especially in the litigation arising under the Gas Act has this Court expressed the view that the limitations established on Commission jurisdiction therein were designed to coordinate precisely with those constitutionally imposed on the states. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 609—610, 64 S.Ct. 281, 291, 88 L.Ed. 333; Panhandle Pipe Line Co. v. Public Service Commission, 332 U.S. 507, 514—515, 68 S.Ct. 190, 193—194, 92 L.Ed. 128; Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682, 690—691, 67 S.Ct. 1482, 1487, 91 L.Ed. 1742; Illinois Natural Gas Co. v. Public Service Co., 314 U.S. 498, 506, 62 S.Ct. 384, 387, 86 L.Ed. 371.19 II. 17 We turn next to a definitional problem raised by respondents, relating to the sales to Mineral County. In short, it is this: § 201 extends Commission jurisdiction to 'sale of electric energy at wholesale in interstate commerce'. Subsection (d) of that section states: 18 'The term 'sale of electric energy at wholesale' when used in this Part means a sale of electric energy to any person for resale.' 19 And § 3(4)20 equates 'person' with 'individual or a corporation', while § 3(3)21 excludes municipalities defined in § 3(7)22 from the scope of the latter term. So respondents argue that the sales to Mineral County are neatly and decisively excluded from Part II rate regulation. 20 The use of these sections in support of an indirect exception to Part II has no support in the statutory scheme as a whole. Sections 306 and 313(a), in fact, look quite the other way. They provide for complaints and petitions for rehearing by municipalities. And § 3(7) contemplates municipalities as users and distributors of power. To accept respondents' contention as to Mineral County would thwart the premise of these provisions: that such political subdivisions of the states can be aggrieved by the failure of a public utility selling power to them to satisfy the requirements of Part II. 21 Nor do we find any evidence of conscious coordination of §§ 3(3), (4) and 201(d) from the legislative history. True, they were simultaneously enacted, and, in fact, the interpolation of the word 'person' into § 201(d) occurred after the §§ 3(3) and 3(4) definitions were in existence in S. 2796, 74th Cong., 1st Sess., as passed by the Senate and reported to the House, June 13, 1935. But this alteration came at the insistence of the House. The Senate had provided for jurisdiction over sales occurring before or after interstate transmission, ibid., § 201(f), and the House amendment, from which § 201(d) in its present form stemmed, covered sales during the transmission across state lines for the first time. So the House Report is, we think, significant in its redefinition of the section: 'A 'wholesale' transaction is defined to mean the sale of electric energy for resale.' H.R.Rep. No. 1318, 74th Cong., 1st Sess., p. 8. We conclude, therefore, that the Congress attached no significance of substance to the addition of the word 'person,' and in fact did not intend it as a limitation on Commission jurisdiction. Indeed quite the contrary was sought by the House amendment of § 201(d).23 22 A third factor, in addition to the statutory scheme and legislative history of § 201(d), is the rejection of respondents' contention by the Commission and courts. Three circuits have just recently done so,24 and the Federal Power Commission's long assertion that it has authority over rates of sales to municipalities has probably risen to the dignity of an agency 'policy.'25 We have often stated our sympathy with established administrative interpretations such as this. Cf. United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345. 23 Where the language and purpose of the questioned statute is clear, courts, of course, follow the legislative direction in interpretation. Where the words are ambiguous, the judiciary may properly use the legislative history to reach a conclusion. And that method of determining congressional purpose is likewise applicable when the literal words would bring about an end completely at variance with the purpose of the statute. Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553; Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152; International Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237, 243, 72 S.Ct. 235, 239, 96 L.Ed. 275; Johansen v. United States, 343 U.S. 427, 432, 72 S.Ct. 849, 853, 96 L.Ed. 1051. So here, since it is our judgment that neither the legislative aim nor the realities of coordinated rate regulation compel it, we reject respondents' plea that the Federal Power Commission can exercise no authority over sales to Mineral County, and, for similar reasons, the Company's contention in No. 205 that the sales to the Navy are not sales to a 'person.' III. 24 The claim that the sales here occurred over 'local distribution' facilities, § 201(b), and were not 'for resale' because the contracts did not state as much, are insubstantial. The sales were made in California but the facilities supplied 'local distribution' only after the current was subdivided for individual consumers.26 But a final question—whether the Federal Power Commission may exercise rate authority over the entire amount of power sold or merely that which is resold by the Navy and the County—requires rather more extended discussion. 25 Certainly the concrete fact of resale of some portion of the electricity transmitted from a state to a point outside thereof invokes federal jurisdiction at the outset, despite the fact that the power thus used traveled along its interstate route 'commingled' with other power sold by the same seller and eventually directly consumed by the same purchaser-distributor. But the Government argues from this that all the power exchanged between the same parties over the same facilities is subject to Commission order, irrespective of whether resold or not. For this proposition is relies on an alleged similarity between the problem as thus stated and that decided in Pennsylvania Water & Power Co. v. Federal Power Commission, 343 U.S. 414, 419, 72 S.Ct. 843, 845, 96 L.Ed. 1042.27 We held there that the federal rate authority must apply to all electricity sold, despite the fact that it was made up of power transmitted across state lines as well as that produced locally. The impossibility of separating interstate from intrastate electricity consumed by each purchaser is patent. In such a case, federal rate jurisdiction must attach to each distributor's negotiated agreement with the seller irrespective of occasional and unpredictable use of nonjurisdictional intrastate power. 26 There, however, the problem was whether the sales of electricity were in 'interstate commerce.' Here, it is a different one whether the entire sale is a 'sale for resale.' For purposes of this case, we need not decide the question of whether a somewhat similar 'commingling'—of power resold with that consumed directly by the purchaser—requires entire federal jurisdiction. For, even assuming arguendo respondents' proposition that it may be proportionally limited, we hold that the record before us in this case does not present a set of facts or findings justifying that result. By the statute, Commission jurisdiction extends to 'sales for resale,' 'but not to any other sale.' § 201(b). The problem, then, in applying respondents' suggested interpretation, is to decide just what power transaction falls within this category of 'sale for resale'—whether one involving the entire volume of electricity transmitted to the Navy or merely that which the buyer resells to others; the determinant is the delineation of 'sale for resale.' See Panhandle Pipe Line Co. v. Public Service Commission, 332 U.S. 507, 516—517, 68 S.Ct. 190, 194—195, 92 L.Ed. 128. Assuming respondents' theory, this would turn, of course, on whether an essentially separate transaction covering the power directly consumed by the purchaser is identifiable. The present record will not permit such a finding. It may be that as an enginerring proposition, accurate measurement of the volume resold and the volume directly consumed by the two parties is possible for each billing period. But there is no record evidence of separate rates, separate negotiations, separate contracts or separate rate regulation by official bodies, in short that the 'sales' themselves were separate, and it is in these terms that the Act would require us to fix the limits of the jurisdictional grant.28 The attention of the Commission was not directed towards this matter. The question will not be ripe for our consideration until the California Commission has had an opportunity to perfect the record and to consider the problem. 27 Reversed. 28 Mr. Justice BLACK, concurring. 29 The question involved in both these cases is whether the Federal Power Commission or the Public Utilities Commission of California has power to regulate certain sales of electricity. The California Supreme Court here sustained an order of the State Commission regulating the sales. The Court of Appeals has sustained an order of the Federal Commission. California Electric Power Co. v. Federal Power Commission, 199 F.2d 206. I agree with the Ninth Circuit for the reasons it gave and consequently concur here in reversal of the Supreme Court of California's contrary holding. 30 Mr. Justice JACKSON, concurring. 31 I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress. When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history should have made on them. Never having been a Congressman, I am handicapped in that weird endeavor. That process seems to me not interpretation of a statute but creation of a statute. 32 I will forego repeating what I have said about this practice in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395, 71 S.Ct. 745, 95 L.Ed. 1035. But I do point out that this case is a dramatic demonstration of the evil of it. Neither counsel who argued the case for the State Commission nor the Supreme Court of California had access to the material used by the Court today. Counsel for the Public Utilities Commission of that State stated at the bar, and confirmed by letter, that he had tried without success over a period of four months to obtain the legislative history of § 20 of Part I of the Federal Power Act. He obtained it only four days before argument, in Washington at the library of this Court. He stated that the City and County Library of San Francisco, the Library of the University of California, and the library of the largest law office in San Francisco were unable to supply it. The City and County Library tried to obtain the material by interlibrary loan from the Library of Congress, but the request was refused. Counsel then attempted to obtain the material from the Harvard Law School Library, but it advised that 'our rules do not permit this kind of material to be sent out on loan.' 33 The practice of the Federal Government relying on inaccessible law has heretofore been condemned. Some of us remember vividly the argument in Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446, in which the Government was obliged to admit that the Executive Orders upon which it had proceeded below had been repealed by another Executive Order deposited with the State Department. No regularized system for their publication had been established. Copies could be obtained at nominal cost by writing to the Department. Having discovered the error, the Government brought it to the attention of the Court. At the argument, however, the Court, led by Mr. Justice Brandeis, subjected Government counsel to a raking fire of criticism because of the failure of the Government to make Executive Orders available in official form. The Court refused to pass on some aspects of the case, and the result was the establishment of a Federal Register.* 34 Today's decision marks a regression from this modern tendency. It pulls federal law, not only out of the dark where it has been hidden, but into a fog in which little can be seen if found. Legislative history here as usual is more vague than the statute we are called upon to interpret. 35 If this were an action to enforce a civil liability or to punish for a crime, I should protest this decision strenuously. However, the decision seems to have operation in the future only. If Congress does not like our legislation, it can repeal it—as it has done a number of times in the past. I therefore concur in the interpretation unanimously approved by the members of the Court who have had legislative experience. 36 Mr. Justice FRANKFURTER. 37 The light shed by Mr. Justice JACKSON on the underpinning of the Court's opinion makes me unwilling to share responsibility for a decision resting on such underpinning. It is one thing to construe a section of a comprehensive statute in the context of its general scheme, as that scheme is indicated by its terms and by the gloss of those authorized to speak for Congress, either through reports or statements on the floor. It is a very different thing to extrapolate meaning from surmises and speculation and free-wheeling utterances, especially to do so in disregard of the terms in which Congress has chosen to express its purpose. 38 Were I confined to the mere text of the legislation we have to construe, with such authoritative elucidation as obviously relevant legislative materials furnish, I would be compelled to find the considerations for fusing, as the Court does, the amended Federal Water Power Act of 1920, 41 Stat. 1063, with Part II of the Federal Power Act of 1935, 49 Stat. 838, 847, too tenuous. In saying this I am wholly mindful of the significance of the decision in Public Utilities Commission v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549. Preoccupation with other matters pending before the Court precludes an independent pursuit by me of all the tributaries in search of legislative purpose that the Court has followed. I am therefore constrained to leave the decision of this case to those who have no doubts about the matter. 1 California Electric Power Co., 50 Cal. P.U.C. 749, and California Electric Power Co., 89 P.U.R.(N.S.) 359, respectively. There was some doubt as to the effect of the apparently conflicting orders, reflecting on the wisdom of our exercise of the power to review. The respondents contend that the state order merely permitted, but did not require, application of the higher rates to the Navy and County sales. The distinction, whatever its abstract attraction, misses the point that we are here considering whether or not the state agency had jurisdiction at the outset to consider these rates at all. That the order would have no concrete effect on the prices petitioners must pay is irrelevant and unlikely as well. The Federal Power Commission merely ordered the Company to cease charging other than filed rates and so, while constituting a determinative assertion of its jurisdiction, apparently does not foreclose the submission of a new schedule, with usual rate-making procedures before the federal body. 18 CFR §§ 35.3, 35.5, 35.20. 2 § 205(a): 'All rates and charges made, demanded, or received by any public utility for or in connection with the transmission or sale of electric energy subject to the jurisdiction of the Commission, and all rules and regulations affecting or pertaining to such rates or charges shall be just and reasonable'. 3 § 206(a): 'Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order.' 4 'Section 201. (a) It is hereby declared that the business of transmitting and selling electric energy * * * is affected with a public interest, and that Federal regulation of matters relating to * * * the transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States.' Section 201(b) states, in apparently similar vein, that the Act is not to 'deprive a State or State Commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line.' The provision certainly does not go beyond that of § 201(a), noted in the opinion in limiting federal authority. This is true, not only because of the substantial similarity of the language, but also because it appears not to have been drafted with state rate regulation in mind. Rather, 79 Cong.Rec. 10527, indicates that the provision was intended to preserve the validity of certain state statutes prohibiting or regulating the volume of state power exported. Compare S. 2796, 74th Cong., 1st Sess., as introduced, § 201(b), and idem. as reported in the House, Union Calendar No. 451, § 201(b). It has been so construed. Safe Harbor Water Power Corp., 5 F.P.C. 221, 235. 5 Section 20's reference to state agreement has never been wholly clear. See footnotes 13, 16 and 19, infra. Our opinion, Pennsylvania Water & Power Co. v. Federal Power Commission, 343 U.S. 414, 72 S.Ct. 843, 96 L.Ed. 1042, did not settle the issue, and it has been judicially discussed only rarely. 6 Hearings, House Committee on Water Power, 65th Cong., 2d Sess. 65. 7 It was, of course, more than historical accident that caused the simultaneous passage of the Public Utility Holding Company Act, 15 U.S.C.A. § 79 et seq., and the Federal Power Act; in fact, their mutual consideration by the 79th Congress, 1st Sess., see 79 Cong.Rec. passim, strikingly indicates Congress' realization that state regulation had failed, both because of the giantism of the holding company and because of inability to reach interstate sales. See Davis, Influence of Federal Trade Commission's Investigations, 14 Geo.Wash.L.Rev. 21. 8 See Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128; Adams Express Co. v. Com. of Kentucky, 238 U.S. 190, 35 S.Ct. 824, 59 L.Ed. 1267; Rosenberger v. Pacific Express Co., 241 U.S. 48, 36 S.Ct. 510, 60 L.Ed. 880; James Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326; Whitfield v. State of Ohio, 297 U.S. 431, 56 S.Ct. 532, 80 L.Ed. 778; Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 350, 57 S.Ct. 277, 282, 81 L.Ed. 270. 9 Compare the Wilson Act, 26 Stat. 313, 27 U.S.C.A. § 121 (alcoholic beverages), the Webb-Kenyon Act, 37 Stat. 699, 27 U.S.C. § 122, 27 U.S.C.A. § 122 (same); 32 Stat. 193, 21 U.S.C.A. § 25 (oleomargarine); the Reed Amendment to the National Appropriation Act of 1917, 39 Stat. 1069 (alcoholic beverages); the Hawes-Cooper Act, 45 Stat. 1084, 49 U.S.C. § 60, 49 U.S.C.A. § 60; and the Ashurst-Sumners Act, 49 Stat. 494, 18 U.S.C. § 1761, 1762, 18 U.S.C.A. §§ 1761, 1762 (convict-made goods). 10 Hearings, House Committee on Water Power, 65th Cong., 2d Sess. 62—66, 95—97, is most illuminting in this regard. O. C. Merrill presented the views of the Secretaries of Agriculture, Interior and War. He discussed at some length the problem of sales across state lines and suggested that the proposed § 20 solution was desirable. It left regulation to the interested states 'if they do it; and they are doing it now.' Ibid., at 97. 'The intention of the draft was this: That in so far as the local authorities have the power and exercise it, over rates and service the Federal Commission should leave it alone.' Ibid., at 62. There is no suggestion tht § 20 was conceived as an act of federal permission; indeed Merrill explicitly states his ignorance as to whether any permission was needed: 'I do not know whether the question has even come before the courts as to whether such business is or is not interstate commerce, within the meaning of the commerce clause of the Constitution, so that exclusive jurisdiction would be vested in the Federal Government, if it wished to exercise it.' Mr. Doremus: 'It might be a power which Congress could exercise, or, if it failed to exercise it, could be left in the jurisdiction of the state.' Mr. Merrill: 'It is my judgment that so long as it is satisfactorily handled by the several states it had better be left with them.' Ibid., at 97. 11 See Hearings, Senate Committee on Interstate Commerce, on S. 6, 71st Cong., 2d Sess. Section 47(h) stated that the purpose of the amendments was not to 'abridge the jurisdiction or authority of any State to regulate, to the same extent as if this Act had not been passed, the rates and charges for the sale to consumers within the State of any power transmitted in interstate commerce,' unless a 'substantial number' of those consumers sought federal regulation. 12 Hearings, Senate Committee on Interstate Commerce on S.Res. 80, 71st Cong., 2d Sess. 265. 13 'In cases of interstate and foreign commerce of the character illustrated in the Pennsylvania Gas Co. case (direct sales to consumers), supra, I (the Chief Counsel of the Commission; the Commission approved the statement as its own Decision February 28, 1929) am of the opinion that the Federal Power Commission has no jurisdiction over any matter for the regulation of which the State has already provided a commission with the requisite authority. This appears to be the very situation which Congress had in mind when it conferred a conditional jurisdiction upon the commission. If such a state commission does not exist, the jurisdiction of the Federal Power Commission applies in full. If the State has a commission with authority over a part only of the matters specified in section 20, the jurisdiction of the Federal Power Commission extends to the remainder of such matters. 'In cases of interstate and foreign commerce of the character illustrated in the Attleboro case, supra, it seems clear that the States individually have no jurisdiction at all; that having no individual jurisdiction they cannot acquire it jointly by agreements between themselves, except by specific authorization of Congress in the matter hereinafter discussed; and that, in absence of such authorization, the only agency with authority to regulate, in cases of this kind, the specific matters set forth in section 20 is the Federal Power Commission.' F.P.C. Ninth Ann.Rep. 123 124. The Report went on to state that § 20 could not be interpreted as a 'permissive' statute. Ibid., 127—129. The 'compact' interpretation of § 20 was adopted in Safe Harbor Water Power Corp. v. Federal Power Commission, 3 Cir., 124 F.2d 800. See footnote 16, infra. 14 The conception of the Federal Commission's new function was perhaps more revolutionary than could be gathered by merely comparing the new Act with § 20. For it appears that despite the latter provision for limited rate regulation, in fact substantially nothing in that direction had been attempted, at least by 1930. Hearings, Senate Committee on Interstate Commerce on S.Res. 80, 71st Cong., 2d Sess. 79, 262. The Commission had only three accountants, all of whom were concerned with evaluation of proposed licensed hydroelectric projects. Ibid., 38. In fact, Colonel Tyler, Chief Engineer, Federal Power Commission, expressly alluded to the fact that, for federal authority to be effective, it would have to reach all interstate electricity, and not just that which is produced at licensed dams. Ibid., at 195. Here, of course, respondents theorize that a small admixture of hydroelectric power will defeat federal jurisdiction. 15 In fact, the House Report on the bill commenting on § 305 of the Act, stated that specific reference to officials of licensees had been deleted because 'such licensees when interstate operating public-utility companies will be subject to the provisions of the section in any event.' H.R.Rep.No.1318, 74th Cong., 1st Sess. 31. For general discussion of the scope of Part II see Hearings, Senate Committee on Interstate Commerce on S. 1725, 74th Cong., 1st Sess. 250—251; H.R.Rep.No.1318, 74th Cong., 1st Sess. 26—27; Hearings, House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess., on H.R. 5423, pp. 436, 521—530, 549, 1639, 1677 1680, 2143, 2169; H.R.Rep.No.1903, 74th Cong., 1st Sess. 74; 79 Cong.Rec. 8431, 8442, 8444, 10377—10378. 16 '(T)his language (the § 201(a) proviso clause) is not pertinent in the instant controversy for it is designed to be applicable only to electric energy transmitted and sold in intrastate commerce. The contrlo of rates referred to in the section is control by a single State and the language has no relation to possible joint control by two or more States under the compact clause of the Constitution.' Safe Harbor Water Power Corp. v. Federal Power Commission, 3 Cir., 179 F.2d 179, 187. See also Hartford Electric Light Co. v. Federal Power Commission, 2 Cir., 131 F.2d 953; Jersey Central Power & Light Co. v. Federal Power Commission, 3 Cir., 129 F.2d 183. 17 Scott, Control of Power Transmission, 14 Proc. of Acad. of Pol. Sci. 135, followed by Note, 32 Col.L.Rev. 1171, admit the force of Attleboro, but cite § 20 as a permissive regulation statute. On the other hand, Arneson, Federal Regulation of Electric Utilities, 66 U.S.L.Rev. 133, and Updegraf, Extension of Federal Regulation of Public Utilities, 13 Iowa L.Rev. 369, hold that the states' power to regulate rates of sales for resale in interstate commerce was completely wiped out. 18 Actually, an exception to federal commission authority for power generated at licensed hydroelectric projects would have had little real significance in 1935, in terms of limiting resport to that authority. Forty percent of the Nation's electric energy was produced at hydroelectric projects. F.P.C. Electric Power Statistics, 1920—1940, pp. VIII—IX. But only 12.3% of the total production came from licensed sources, which had merely 7.8% of the total national capacity. (Letter from Leon Fuquay, Secretary, Federal Power Commission, to Edward G. Hudon, Assistant Librarian, United States Supreme Court, March 16, 1953.) It would have been curious for Congress to have approved a very special type of regulatory scheme for such a minimal fraction of the country's total power. 19 Safe Harbor Water Power Corp., 5 F.P.C. 221, 239—243. See also 18 CFR §§ 35.3, 35.20. In view of our holding that § 20 does not, of itself, confer jurisdiction on the state commission or commissions in this case, we need not discuss the muchbriefed contention that its conditions have been met. See, however, Safe Harbor Water Power Corp. v. Federal Power Commission, 3 Cir., 124 F.2d 800; Id., 3 Cir., 179 F.2d 179; Pennsylvania Water & Power Co. v. Federal Power Commission, 343 U.S. 414, 72 S.Ct. 843, 96 L.Ed. 1042; and notes 13 and 16, supra. 20 "Person' means an individual or a corporation'. § 3(4). 21 "Corporation' means any corporation, joint-stock company, partnership, association, business trust, organized group of persons, whether incorporated or not, or a receiver or receivers, trustee or trustees of any of the foregoing. It shall not include 'municipalities' as hereinafter defined'. § 3(3). 22 "Municipality' means a city, county, irrigation district, drainage district, or other political subdivision or agency of a State competent under the laws thereof to carry on the business of developing, transmitting, utilizing, or distributing power'. § 3(7). 23 There is evidence, on the other hand, that the exclusion of producing municipalities from Commission jurisdiction was intended. For instance, Devane, Solicitor of the Federal Power Commission at the time, testified as follows before the Senate Committee: 'Mr. Devane: (The Act) does not apply to a publicly owned power plant. 'Senator Hastings: Why was it drawn that way? 'Mr. Devane: We did not feel that it was within our province to prepare a bill that would undertake to regulate municipal, State, or Government utilities.' Hearings, Senate Committee on Interstate and Foreign Commerce on S. 1725, 74th Cong., 1st Sess. 256. And before the House Committee, Commissioner Seavey recorded a similar interpretation: 'Mr. Pettingill: Mr. Commissioner, you just said a moment ago that as you construed the bill, a private power line could not be required to carry electric energy generated by the Tennessee Valley Authority or a municipal plant owned by a city, or a State; is that correct? 'Commissioner Seavey: Yes; that is my understanding of the bill. 'Mr. Pettingill: Because, as you said, the word 'person' does not include a municipality or a governmental body? 'Commissioner Seavey: I think that municipalities are particularly excluded, and it is my belief that any other Federal agency, any other governmental agency, would be excluded under the terms of the bill. 'Mr. Pettingill: Now then, suppose that a municipality acquires by purchase, and of the common stock of a corporation, privately organized, so that the municipality is actually the owner of the power plant, although it was organized privately, as a private corporation. After that was done, could the private power plant competing in the same locality be required to carry the electric energy generated by the plant owned by the municipality, or State, or the nation? 'Commissioner Seavey: If it was controlled by the municipality and was subject wholly to municipal operations, I would say no, there it not be. (sic)' Hearings before House Committee on Interstate and Foreign Commerce, on H.R. 5423, 74th Cong., 1st Sess. 397—398. See § 201(f). 24 California Electric Power Co. v. Federal Power Commission, 9 Cir., 199 F.2d 206; State of Wisconsin v. Federal Power Commission, D.C.Cir., 201 F.2d 183, and Wisconsin-Michigan Power Co. v. Federal Power Commission, 7 Cir., 197 F.2d 472. 25 Kansas Gas & Electric Co., 1 E.P.C. 536; Otter Tail Power Co., 2 F.P.C. 134; Los Angeles v. Nevada-California Electric Corp., 2 F.P.C. 104; Connecticut Light & Power Co., 3 F.P.C. 132; Baum, The Federal Power Commission, 61—62. See the criticism of the § 201(a) phrase as meaninglessly ambiguous, Hartford Electric Light Co., 2 F.P.C. 359, and Northwestern Power Co., 2 F.P.C. 327. The Company has cited a brief by the Commission in another case with some force, as indicating that heretofore it has claimed that the United States is excluded from the Act by virtue of not being a 'person.' Respondent's brief, United States ex rel. Chapman v. Federal Power Commission, 4 Cir., 191 F.2d 796. We note, though, that the contention there was made in regard to the application of § 313(a), that 'No proceeding to review any order of the Commission shall be brought by any person unless such person' has applied to the Commission for a rehearing. The Court, however, chose to ignore the point, and rather held that the Secretary of Interior could not petition for review in that case since he was not a 'party aggrieved,' § 313(b). 191 F.2d at pages 799—800. On certiorari here, the Commission failed to press the 'person' argument again, relying solely on the argument that petitioner, as a representative of federal interests was not 'aggrieved' by the Commission's order in support of its contention of lack of standing. Br.F.P.C.Nos. 28 and 29, 1952 Term, pp. 95 128. We did not consider the matter in our opinion. United States ex rel. Champman v. Federal Power Commission, 345 U.S. 153, 156, 73 S.Ct. 609. 26 See East Ohio Gas Co. v. Tax Commission of Ohio, 283 U.S. 465, 51 S.Ct. 499, 75 L.Ed. 1171; Federal Power Commission v. East Ohio Gas Co., 338 U.S. 464, 469, 70 S.Ct. 266, 269, 94 L.Ed. 268. 27 See California Electric Power Co. v. Federal Power Commission, 9 Cir., 199 F.2d 206, 209. 28 The Ninth Circuit, in California Electric Power Co. v. Federal Power Commission, 199 F.2d 206, now pending before us on a petition for certiorari, No. 495, 345 U.S. 934, 73 S.Ct. 794, with the more complete record before it from the Power Commission, held that Penn Water controlled. We do not decide the question but rather note that the Commission's own view of the matter may still be in the formative stage. See Colorado Interstate Gas Co. v. Federal Power Commission, 3 Cir., 185 F.2d 357; City of Hastings v. Kansas-Nebraska Natural Gas Co., 12 F.P.C. 3, 98 P.U.R. (N.S.) 1. * This history is set out in more detail in Jackson, Struggle for Judicial Supremacy, pp. 89—91.
910
345 U.S. 322 73 S.Ct. 721 97 L.Ed. 1041 DAMERONv.BRODHEAD. No. 302. Argued Feb. 4, 1953. Decided April 6, 1953. Mr. Philip Elman, Washington, D.C., for petitioner. Mr. Leonard M. Campbell, Denver, Colo., for respondent. Mr. Justice REED delivered the opinion of the Court. 1 The facts here are simple and undisputed. Petitioner is a commissioned officer of the United States Air Force. He was assigned to duty at Lowry Field, near Denver, Colorado, in 1948 and, throughout that year resided in a privately rented apartment in that city. Respondent, acting Manager of Revenue and ex-officio Treasurer and Assessor of the City and County of Denver, assessed a tax of $23.51 on his personal property, mostly household goods in the apartment which he valued at $460, by virtue of 4A Colorado Statutes Annotated (1935 ed.), c. 142.1 Petitioner paid the tax under protest, and sued to recover. His complaint pleaded as a fact that he 'during the whole of the calendar year 1948, and for many years prior thereto, was, and at the present time is, a citizen and a resident of the state of Louisiana, domiciled in the town of Port Allen, in the parish of West Baton Rouge, in the state of Louisiana, and remains a domiciliary of that town, parish, and state, and a citizen and resident of said state, in which during all of the period of time pertinent hereto the plaintiff was and is a qualified voter.' He claimed that § 514 of the Soldiers' and Sailors' Relief Act, 54 Stat. 1178, as amended, 56 Stat. 777, 58 Stat. 722, 50 U.S.C.App. §§ 501, 574, 50 U.S.C.A.Appendix, §§ 501, 574, therefore forbade imposition of the Colorado tax. Respondent moved to dismiss, argument was had and the trial court entered judgment for petitioner. The Colorado Supreme Court, on appeal, reversed. Cass v. Dameron, 244 P.2d 1082. It held that the purpose of the statute was to prevent multiple taxation of military personnel, but that since Louisiana had not taxed petitioner's personal property, Colorado was free to do so. Our grant of certiorari rested on 28 U.S.C. § 1257(3), 28 U.S.C.A. § 1257(3). 2 Section 514 of the Act was added, in large part, in 1942. It then provided essentially that: 3 '(1) For the purposes of taxation in respect of any person, or of his property, income, or gross income, by any State, Territory, possession, or political subdivision of any of the foregoing, or by the District of Columbia, such person shall not be deemed to have lost a residence or domicile in any State, Territory, possession, or political subdivision of any of the foregoing, or in the District of Columbia, solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, while, and solely by reason of being, so absent.' 4 The 1944 Amendment thereto, which is crucial here, first concerned personal property taxes. It stated: 5 'personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession, or political subdivision, or district'. 6 It also interpolated 'personal' in the second line of § 514(1), 58 Stat. 722. 7 Respondents' argument that the statute in this form cannot affect Colorado's attempt to tax petitioner is two-fold—either it does not apply or is unconstitutional. 8 The constitutionality of federal legislation exempting servicemen from the substantial burdens of seriate taxation by the states in which they may be required to be present by virtue of their service, cannot be doubted. Generally similar relief has often been accorded other types of federal operations or functions. And we have upheld the validity of such enactments, even when they reach beyond the activities of federal agencies and corporations to private parties who have seen fit to contract to carry on functions of the Federal Government. Carson v. Roane-Anderson Co., 342 U.S. 232, 72 S.Ct. 257, 96 L.Ed. 257, and cases cited; cf. James v. Dravo Contracting Co., 302 U.S. 134, 160—161, 58 S.Ct. 208, 221, 82 L.Ed. 155. 9 Nor do we see any distinction between those cases and this. Surely, the respondents may not rely on the fact that petitioner here is not a business contractor. He is not the less engaged in a function of the Federal Government merely because his relationship is not entirely economic. We have, in fact, generally recognized the especial burdens of required service with the armed forces in discussing the compensating benefits Congress provides. Le Maistre v. Leffers, 333 U.S. 1, 68 S.Ct. 371, 92 L.Ed. 429; Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587. Cf. Board of Commissioners of Creek County v. Seber, 318 U.S. 705, 63 S.Ct. 920, 87 L.Ed. 1094. Petitioner's duties are directly related to an activity which the Constitution delegated to the national government, that 'To declare War,' U.S.Const. Art. I, § 8, cl. 11, and 'To raise and support Armies'. Ibid., cl. 12. Since this is so, congressional exercise of a 'necessary and proper' supplementary power such as this statute must be upheld. Pittman v. Home Owners' Loan Corp., 308 U.S. 21, 32—33, 60 S.Ct. 15, 17 18, 84 L.Ed. 11; Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 102—104, 62 S.Ct. 1, 5—6, 86 L.Ed. 65; Carson v. Roane-Anderson Co., supra, 342 U.S. at page 234, 72 S.Ct. at page 258. What has been said in no way affects the reserved powers of the states to tax. For this statute merely states that the taxable domicile of servicemen shall not be changed by military assignments. This we think is within the federal power. 10 We turn, then, to the interpretation of the statute within the factual confines of this particular case. Respondents' theory here also has no merit. It is based on the statements of the legislative history that, for instance, the provision was 'designed to prevent multiple State taxation.' H.R.Rep. No. 2198, 77th Cong., 2d Sess., p. 6.2 The short answer to the argument that it therefore only applies where multiple taxation is a real possibility is that the plain words of the statute do not say so. In fact, they are much broader: 'personal property shall not be deemed to be located or present in or to have a situs for taxation' in the state of temporary presence in any case. There is no suggestion that the state of original residence must have imposed a property tax. Since the language of the section does not establish a condition to its application, we would not be justified in doing so. For we are shown nothing that indicates that a straightforward application of the language as written would violate or affect the clear purpose of the enactment. See United States v. Public Utilities Commission of California, 345 U.S. 295, 73 S.Ct. 706, and cases cited. In fact though the evils of potential multiple taxation may have given rise to this provision, Congress appears to have chosen the broader technique of the statute carefully, freeing servicemen from both income and property taxes imposed by any state by virtue of their presence there as a result of military orders. It saved the sole right of taxation to the state of original residence whether or not that state exercised the right.3 Congress, manifestly, thought that compulsory presence in a state should not alter the benefits and burdens of our system of dual federalism during service with the armed forces. 11 For similar reasons, we reject the argument that the word 'deemed' as used implies a rebuttable presumption so as to permit taxation by the state of temporary presence in some cases. Such a construction would nullify the statute. For in every case, the absence of the property from the state of the serviceman's temporary presence would be a fiction, rebuttable by further evidence. 12 Reversed. 13 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 14 The power to tax is basic to the sovereignty of the states. Railroad Co. v. Peniston, 18 Wall. 5, 21 L.Ed. 787. There are few express restrictions of that power contained in the Constitution. See Art. I, § 10; Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80; Canton R. Co. v. Rogan, 340 U.S. 511, 71 S.Ct. 447, 95 L.Ed. 488. And the implied restrictions are not numerous. A privilege secured by the Constitution, such as the right to free speech or the right to intercourse among the states, may not be taxed by a state. Murdock v. Com. of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. A state may not tax that part of an interstate operation which has no relation to the opportunities or benefits which it confers. Standard Oil Co. v. Peck, 342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427. Nor may it discriminate in its tax scheme against interstate commerce or place an undue burden on it. J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365; Gwin, White & Prince, Inc., v. Henneford, 305 U.S. 434, 59 S.Ct. 325, 83 L.Ed. 272; Nippert v. City of Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760. 15 Closer in point are those instances where the state tax is levied on a federal instrumentality or on the means with which that instrumentality performs its functions. This exception is also represented by a rather narrow group of cases. See Pittman v. Home Owners' Loan Corp., 308 U.S. 21, 60 S.Ct. 15, 84 L.Ed. 11; Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 62 S.Ct. 1, 86 L.Ed. 65; Maricopa County v. Valley Nat. Bank, 318 U.S. 357, 63 S.Ct. 587, 87 L.Ed. 834. United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209. Cf. Board of Commissioners of Creek County v. Seber, 318 U.S. 705, 63 S.Ct. 920, 87 L.Ed. 1094. Some of those immunities were made explicit by an act of Congress. Some were implied. But the implied immunity, which derives from a forbidden interference with a federal function, has a limited scope. It does not, for example, extend to salaries of federal functionaries, Graves v. People of State of New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927, to the proceeds under a contractor's contract with the Federal Government, James v. Dravo Contracting Co., 302 U.S. 134, 149 et seq., 58 S.Ct. 208, 216, 82 L.Ed. 155, or to sales taxes on goods and supplies furnished contractors with the Federal Government. State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3. Cf. Buckstaff Bath House Co. v. McKinley, 308 U.S. 358, 60 S.Ct. 279, 84 L.Ed. 322. The power of Congress to withhold tax immunity is clear. But to date the power of Congress to create a tax immunity has been narrowly confined. It stems from 'the power to preserve and protect functions validly authorized'. See Carson v. Roane-Anderson Co., 342 U.S. 232, 234, 72 S.Ct. 257, 258, 96 L.Ed. 257. Up to the present the Court has never held that the private affairs of a federal employee can be made public affairs by Congress and immune from state taxation. The question was indeed reserved in Graves v. People of State of New York ex rel. O'Keefe, supra, 306 U.S. at pages 478—479, 59 S.Ct. at pages 597—598. As Mr. Justice Frankfurter stated in his concurring opinion, id., 306 U.S. at page 492, 59 S.Ct. at page 604, 'Whether Congress may, by express legislation, relieve its functionaries from their civic obligations to pay for the benefits of the State governments under which they live is matter for another day.' 16 The federal property used by the soldier, his activities as a federal employee, every phase of the functions he performs for the Army are immune from state taxation because his work is the work of the national government. But the wages that he makes, as Graves v. People of State of New York ex rel. O'Keefe, supra, held, can be taxed on a nondiscriminating basis by the states. So can his real and personal property. For in his private capacity a federal employee is no different from any other citizen. He receives protection and benefits from the society which the states create and maintain. Their police, their courts, their parks, their sanitary districts, their schools are all part of the civilization which he enjoys. If he gets tax immunity, it means that other citizens must pay his share. 17 The Court does not profess to go so far. It merely says that this case turns on changing military assignments and the burden placed on service men and women as a result of that feature of their work. But we also know that service men and women receive salaries much lower than those earned in civilian life. Can Congress remove those salaries from the reach of state taxing officials because they are burdensome to our military personnel? Certainly the burden, the harassment, the unpleasantness of those taxes would be as easy to establish as the burden of the present tax. And the relation of the burden to the federal service would be as close and intimate in one case as in the other. 18 The private affairs of our military personnel—the disposition of their salary, the furniture they purchase, the apartments they rent, the personal contracts that they make—by the very definition are not in the federal public domain. When Congress undertakes to protect them from state taxation or regulation, it is not acting to protect either a federal instrumentality or any function which a federal agency performs. Congress, therefore, acts without constitutional authority. 19 In sum, the power to tax is basic to the sovereignty of the states. The creation of islands of tax immunity should therefore be sparingly made. The tax immunity here recognized is not contained in the Constitution. It cannot be fairly implied because Denver's tax does not burden the performance of any federal function. 1 This statute, in standard form, provides that '(a)ll personal property within this state on March first at twelve o'clock meridian in the then current year shall be listed and assessed', § 72, and that the taxes so assessed 'shall be and remain a perpetual lien upon the property so levied upon,' § 197(a). 2 See also Hearings, House Committee on Military Affairs, on H.R. 7029, 77th Cong., 2d Sess.; S.Rep.No.959, 78th Cong., 2d Sess.; H.R.Rep.No.1514, 78th Cong., 2d Sess. 3 Hearings, note 2, supra, p. 28.
78
345 U.S. 361 73 S.Ct. 701 97 L.Ed. 1071 UNITED STATESv.GILBERT ASSOCIATES, Inc. No. 440. Argued March 11, 1953. Decided April 6, 1953. Mr. Harry Baum, Washington, D.C., for petitioner. No appearance for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 This case involves the question of whether the Town of Walpole, New Hampshire, or the Federal Government has the prior right to a fund in the hands of a state court receiver of the respondent-taxpayer, an insolvent corporation. The Supreme Court of New Hampshire held the Town was entitled to priority, Petition of Gilbert Associates, Inc., 97 N.H. 411, 90 A.2d 499, and we granted certiorari, 344 U.S. 911, 73 S.Ct. 335. 2 The claims of both arise from tax liens. The Town's lien grew out of an assessment of an ad valorem tax upon certain machinery of Gilbert Associates, Inc., the respondent, for the years 1947 and 1948 in the amounts of $612.95 and $690.85, respectively. The corporation was thereafter declared insolvent, and a temporary receiver was appointed August 12, 1949, and made permanent January 30, 1950. The Town's taxes were assessed April 1, 1947, and April 1, 1948. On September 25, 1948, the Town sold the taxpayer's property at a tax sale to pay to taxes accrued for the year 1947. On September 24, 1949, the Town sold the same property at a tax sale for taxes accrued for the year 1948. The record does not disclose the nature of these tax-sale proceedings. We are informed that the Town bid in the property at its own sales. At least the Town never took possession of the property, which was later sold by the receiver, creating the fund involved here. The Federal Government's lien was for employment, withholding, and income taxes that became due between 1943 and June 30, 1948, in the sum of $3,171.97. Notice of this lien was filed in the office of the Clerk of the United States District Court for the District of New Hampshire on August 6, 1948. 3 Under § 3672 of the Internal Revenue Code, 56 Stat. 798, 26 U.S.C. (1946 ed.) § 3672, 26 U.S.C.A. § 3672, the lien of the United States 'shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the collector—* * *. 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 * * *.' The Supreme Court of New Hampshire held that since notice of the Government's lien was not filed until August 6, 1948, and the Town's taxes were assessed on April 1, 1947, and April 1, 1948, respectively, and such tax assessments are 'in the nature of a judgment' under the law of New Hampshire, the Town was a judgment creditor within the meaning of § 3672, and the Government's lien was not valid as against the Town's. 4 Was the Town a judgment creditor within the meaning of § 3672? The New Hampshire Supreme Court in the instant case said: 5 'It is settled by our decisions that the assessment of a tax is in the nature of a judgment, enforced by a warrant instead of an execution. Boody v. Watson, 64 N.H. 162, 167, 9 A. 794; Jaffrey v. Smith, 76 H.H. 168, 171, 80 A. 504; Nottingham v. Newmarket Mfg. Company, 84 N.H. 419, 151 A. 709 See also, Automatic Sprinkler Corp. v. Marston, 94 N.H. 375, 54 A.2d 154.' 97 N.H. 411, 414, 90 A.2d 499, 502. 6 We would not question or presume to say what the nature and effect of a tax proceeding is in New Hampshire. The state is free to give its own interpretation for the purpose of its own internal administration. United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 65 S.Ct. 304, 89 L.Ed. 294. See also Howard v. Commissioners of Louisville Sinking Fund, 344 U.S. 624, 73 S.Ct. 465. 7 The Supreme Court of New Hampshire freely concedes, however, as it must, that the meaning of a federal statute is for this Court to decide. United States v. Security Trust & Savings Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53. Congress enacted § 3672 to meet the harsh condition created by the holding in United States v. Snyder, 149 U.S. 210, 13 S.Ct. 846, 37 L.Ed. 705, when federal liens were few, that a secret federal tax lien was good against a purchaser for value without notice. 8 A cardinal principle of Congress in its tax scheme is uniformity, as far as may be. Therefore, a 'judgment creditor' should have the same application in all the states. In this instance, we think Congress used the words 'judgment creditor' in § 3672 in the usual, conventional sense of a judgment of a court of record, since all states have such courts.1 We do not think Congress had in mind the action of taxing authorities who may be acting judicially as in New Hampshire and some other states,2 where the end result is something 'in the nature of a judgment,' while in other states the taxing authorities act quasi-judicially and are considered administrative bodies.3 9 We conclude that whatever the tax proceedings of the Town of Walpole may amount to for the purposes of the State of New Hampshire, they were not such proceedings as resulted in making the Town a judgment creditor within the meaning of § 3672. 10 While the Town was not a judgment creditor, it was the holder of a general lien on all the taxpayer's property. So was the United States a general lienholder on all the taxpayer's property.4 But since the taxpayer was insolvent, the United States claims the benefit of another statute to give it priority, § 3466 of the Revised Statutes, 31 U.S.C. (1946 ed.) § 191, 31 U.S.C.A. § 191, the provisions of which are set forth in the margin.5 11 As is usual in cases like this, the Town asserts that its lien is a perfected and specific lien which is impliedly excepted from this statute. This Court has never actually held that there is such an exception. Once again, we find it unnecessary to meet this issue because the lien asserted here does not raise the question. 12 In claims of this type 'specificity' requires that the lien be attached to certain property by reducing it to possession, on the theory that the United States has no claim against property no longer in the possession of the debtor. Thelusson v. Smith, 2 Wheat. 396, 4 L.Ed. 271. Until such possession, it remains a general lien. There is no ground for the contention here that the Town had perfected its lien by reducing the property to possession. The record reveals no such action. The mere attachment of the Town's lien before the recording of the federal lien does not, contrary to the holding of the Supreme Court of New Hampshire, give the Town priority over the United States. The taxpayer had not been divested by the Town of either title or possession. The Town, therefore, had only a general, unperfected lien. United States v. Waddill, Holland & Flinn, Inc., supra; People of State of Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 370, 67 S.Ct. 340, 345, 91 L.Ed. 348. Where the lien of the Town and that of the Federal Government are both general, and the taxpayer is insolvent, § 3466 clearly awards priority to the United States. United States v. Taxes, 314 U.S. 480, 488, 62 S.Ct. 350, 354, 86 L.Ed. 356. 13 The judgment of the Supreme Court of New Hampshire is reversed. 14 Reversed. 15 Mr. Justice FRANKFURTER, whom Mr. Justice REED joins, dissenting. 16 I cannot agree with the opinion of the Court insofar as it supposes that § 3672 of the Internal Revenue Code is to be read as requiring that certain procedures—and the same procedures—be complied with in each State before a creditor becomes the magic 'judgment creditor.' Section 3672 gives the United States priority over other creditors but not over judgment creditors. This is the rule of uniformity enacted by Congress. But it does not demand that the same procedure be followed in every State. Nor does it demand that any particular procedure be followed, that the creditor formally prosecute his claim in the courts and obtain judgment, or even that the commonlaw requirements be satisfied. 17 Of course, the State courts cannot by the wand of a label wave away the requirement, which I agree is a matter for federal interpretation, that a creditor be a 'judgment creditor.' But federal law does not insist on anything more than that the creditor be in the same position as a creditor who holds a judgment 'in the usual, conventional sense.' Federal law refers to State law, as it does in the closely comparable bankruptcy provisions, to determine whether action taken by a taxing authority of New Hampshire has substantially the same effect as would be given the judgment of a court of record, that is whether the Town stands—along with creditors who have obtained judgment from a court of record—on a higher footing than those who have yet to establish their claims in court. If the assessment here has, as the New Hampshire Supreme Court informs us, the normal attributes of a judgment, I see no way of escaping the conclusion that the Town is a judgment creditor within the meaning of § 3672. In the light of the New Hampshire decisions, see Nottingham v. Newmarket Mfg. Co., 84 N.H. 419, 151 A. 709; Jaffrey v. Smith, 76 N.H. 168, 80 A. 504; cf. Automatic Sprinkler Corp. v. Marston, 94 N.H. 375, 376, 54 A.2d 154, there is no reason for believing that the State ruling here simply applies a label and does not express the controlling law of the State unrelated to the implications of § 3672. Nothing more ought to be required. 18 In view of the Court's reluctance not only today but for almost a century and a half to decide the issues that may arise under § 3466 of the Revised Statutes, I do not think I ought to embarrass later consideration by the Court of these issues by speaking on them at this time. Compare Conard v. Atlantic Ins. Co., 1 Pet. 386, 441, 444, 7 L.Ed. 189, with United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 355, 65 S.Ct. 304, 305, 89 L.Ed. 294; see 56 Yale L.J. 1258. But cf. People of State of Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 376, 67 S.Ct. 340, 348, 91 L.Ed. 348 (dissenting opinion). It would be particularly inappropriate to do so in this case, because we are not told what kind of lien has arisen and what effect the tax sales may have in the circumstances of this case. 1 See concurring opinion of Mr. Justice Jackson in United States v. Security Trust & Savings Bank, supra, 340 U.S. at page 52, 71 S.Ct. 114. 2 The decisions have arrived at the conclusion that assessments are judgments for purposes of preventing collateral attacks upon them, ascertaining rights to a hearing in connection with them, or deciding under local procedure on the applicable method of collecting them. These cases, prior to the instant decision, have never actually declared that the status of a technical judgment creditor has been created. People ex rel. Harding v. Hart, 332 Ill. 467, 163 N.E. 769; Nottingham v. Newmarket Mfg. Co., 84 N.H. 419, 151 A. 709; People ex rel. Glens Falls Ins. Co. v. Ferguson, 38 N.Y. 89; Williams v. Weaver, 75 N.Y. 30; State v. Georgia Co., 112 N.C. 34, 17 S.E. 10, 19 L.R.A. 485; Union Tanning Co. v. Commonwealth, 123 Va. 610, 96 S.E. 780. But see Hibbard v. Clark, 56 N.H. 155, holding that it is not a judgment. 1 Cooley, Taxation (4th ed., 1924), 91—92, points out that assessments, though they may be enough like judgments to definitely establish a demand for taxes, are not technical judgments. 3 First National Bank of Remsen v. Hayes, 186 Iowa 892, 171 N.W. 715; Alexander v. Commonwealth, 137 Va. 477, 120 S.E. 296; Weyerhaeuser Timber Co. v. Pierce County, 97 Wash. 534, 167 P. 35; Stimson Timber Co. v. Mason County, 112 Wash, 603, 192 P. 994. 4 '§ 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.' § 3670, I.R.C., 26 U.S.C. (1946 ed.) § 3670, 26 U.S.C.A. § 3670. 5 R.S. § 3466. 'Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority (hereby) established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.'
1112
345 U.S. 278 73 S.Ct. 671 97 L.Ed. 1007 HEALY et al.v.COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. SMITH. Nos. 76, 138. Argued Dec. 12, 1952. Decided April 6, 1953. Rehearing Denied May 18, 1953. See 345 U.S. 961, 73 S.Ct. 935. Mr. James H. Heffern, Buffalo, N.Y., for Edwin E. Healy and Gordon W. Hartfield. Mr. Sol Goodman, Cincinnati, Ohio, for Hall C. Smith. Mr. Charles S. Lyon, Washington, D.C., for Commissioner of Internal Revenue. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 The income tax liability of three individual taxpayers for a given year is here before the Court. Only a single question, common to all the cases, is involved. The Tax Court held a view favorable to the taxpayers.1 The Commissioner of Internal Revenue sought review before the appropriate Courts of Appeals. As to two of the taxpayers, the Court of Appeals for the Second Circuit reversed,2 while the Court of Appeals for the Sixth Circuit took a contrary view of the law.3 We granted certiorari to resolve the conflict.4 2 All controlling facts in the three situations are similar. Each taxpayer reports his income on the cash receipts and disbursements method. Each, in the respective years involved, received a salary from a closely held corporation in which he was both an officer and a stockholder. The full amount of salary so received was reported as income for the year received. Subsequently, after audit of the corporate returns, the Commissioner disallowed the deduction by the corporations of parts of the salaries as exceeding reasonable compensation. As a result, deficiencies in income taxes were determined against the corporations. The Commissioner also determined that the officers were liable as transferees under § 311 of the Internal Revenue Code, 26 U.S.C.A. § 311, for the corporate deficiencies. The receipt of excessive salary was the transfer upon which the transferee liability was predicated. As a result of either litigation5 or negotiation, various amounts became established as deficiencies of the corporations and as transferee liabilities of each of the three officers. In each case, the entire process of determining these amounts—from the start of the audit by agents of the Commissioner to the final establishment of the liabilities occurred after the end of the year in which the salary was received and reported. 3 The question before the Court is whether part of the salary should be excluded from taxable income in the year of receipt since part was excessive salary and led to transferee liability for the unpaid taxes of the corporations. The taxpayers contend that an adjustment should be made in the year of original receipt of the salary; the Government that an adjustment should be made in the year of payment of the transferee liability. 4 One of the basic aspects of the federal income tax is that there be an annual accounting of income.6 Each item of income must be reported in the year in which it is properly reportable and in no other. For a cash basis taxpayer, as these three are, the correct year is the year in which received.7 5 Not infrequently, an adverse claimant will contest the right of the recipient to retain money or property, either in the year of receipt or subsequently. In North American Oil Consolidated v. Burnet, 1932, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197, we considered whether such uncertainty would result in an amount otherwise includible in income being deferred as reportable income beyond the annual period in which received. That decision established the claim of right doctrine 'now deeply rooted in the federal tax system.'8 The usual statement of the rule is that by Mr. Justice Brandeis in the North American Oil opinion: 'If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.' 286 U.S. at page 424, 52 S.Ct. at page 615. 6 The phrase 'claim of right' is a term known of old to lawyers. Its typical use has been in real property law in dealing with title by adverse possession, where the rule has been that title can be acquired by adverse possession only if the occupant claims that he has a right to be in possession as owner.9 The use of the term in the field of income taxation is analogous. There is a claim of right when funds are received and treated by a taxpayer as belonging to him. The fact that subsequently the claim is found to be invalid by a court does not change the fact that the claim did exist. A mistaken claim is nonetheless a claim, United States v. Lewis, 1951, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560. 7 However, we are told that the salaries were not received as belonging to the taxpayers, but rather they were received by the taxpayers as 'constructive trustees' for the benefit of the creditors of the corporation. Admittedly, receipts by a trustee expressly for the benefit of another are not income to the trustee in his individual capacity, for he 'has received nothing * * * for his separate use and benefit', Eisner v. Macomber, 1920, 252 U.S. 189, 211, 40 S.Ct. 189, 194, 64 L.Ed. 521. 8 We do not believe that these taxpayers were trustees in the sense that the salaries were not received for their separate use and benefit. Under the equitable doctrine that the funds of a corporation are a trust fund for the benefit of creditors, a stockholder receiving funds without adequate consideration from an insolvent corporation may be held, in some jurisdictions, to hold the funds as a constructive trustee.10 So it was that these taxpayers were declared constructive trustees and were liable as transferees in equity. A constructive trust is a fiction imposed as an equitable device for achieving justice.11 It lacks the attributes of a trust trust, and is not based on any intention of the parties. Even though it has a retroactive existence in legal fiction, fiction cannot change the 'readily realizable economic value'12 and practical 'use and benefit'13 which these taxpayers enjoyed during a prior annual accounting period, antecedent to the declaration of the constructive trust. 9 We think it clear that the salaries were received under a claim of individual right—not under a claim of right as a trustee. Indeed one of the parties concedes, as is manifestly so, that the reporting of the salary on the income tax returns indicated that the income was held under a claim of individual right. The taxpayers argue that the salary was subject to a restriction on its use.14 Since all the facts which ultimately gave rise to the transferee liability were in existence at the end of the taxable year, we are told those facts were a legal restriction on the use of the salary. Actually it could not have been said at the end of each of the years involved that the transferee liability would materialize. The Commissioner might not have audited one or all of these particular returns; the Commissioner might not have gone through the correct procedure or have produced enough admissible evidence to meet his burden of proving transferee liability;15 or, through subsequent profitable operations, the corporations might have been able to have paid their taxes obviating the necessity of resort to the transferees.16 10 There is no need to attempt to list hypothetical situations not before us which put such restrictions on use as to prevent the receipt under claim of right from giving rise to taxable income. But a potential or dormant restriction, such as here involved, which depends upon the future application of rules of law to present facts, is not a 'restriction on use' within the meaning of North American Oil v. Burnet, supra. 11 The inequities of treating an amount as income which eventually turns out not to be income are urged upon us. The Government concedes that each of these taxpayers is entitled to a deduction for a loss in the year of repayment of the amount earlier included in income.17 In some cases, this treatment will benefit the taxpayer; in others it will not. Factors such as the tax rates in the years involved and the brackets in which the income of the taxpayer falls will be controlling. A rule which required that the adjustment be made in the earlier year of receipt instead of the later year of repayment would generally be unfavorable to taxpayers, for the statute of limitations would frequently bar any adjustment of the tax liability for the earlier year.18 Congress has enacted an annual accounting system under which income is counted up at the end of each year. It would be disruptive of an orderly collection of the revenue to rule that the accounting must be done over again to reflect events occurring after the year for which the accounting is made, and would violate the spirit of the annual accounting system. This basic principle cannot be changed simply because it is of advantage to a taxpayer or to the Government in a particular case that a different rule be followed. 12 The judgment of the Court of Appeals for the Second Circuit in No. 76, being consistent with this opinion, is affirmed, while the contrary judgment of the Court of Appeals for the Sixth Circuit in No. 138 is reversed. It is so ordered. 13 Judgment in No. 76 affirmed; judgment in No. 138 reversed. 14 Mr. Justice DOUGLAS dissents. 1 Hartfield (Healy), 1951, 16 T.C. 200, (consolidated proceedings); Smith, 1948, 11 T.C. 174. 2 Commissioner of Internal Revenue v. Hartfield, 1952, 194 F.2d 662. 3 Commissioner of Internal Revenue v. Smith, 1952, 194 F.2d 536. 4 1952, 344 U.S. 811, 73 S.Ct. 15; 344 U.S. 813, 73 S.Ct. 25. 5 Charles E. Smith & Sons Co. v. Commissioner, 6 Cir., 1950, 184 F.2d 1011. 6 Reo Motors v. Commissioner, 1950, 338 U.S. 442, 70 S.Ct. 283, 94 L.Ed. 245; Heiner v. Mellon, 1938, 304 U.S. 271, 58 S.Ct. 926, 82 L.Ed. 1337; Burnet v. Sanford & Brooks Co., 1931, 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383. See I.R.C., § 41, 26 U.S.C.A. § 41. 7 I.R.C. § 42(a), 26 U.S.C.A. § 42(a). Other permissive methods of accounting for tax purposes are the accrual basis, I.R.C. §§ 41 and 42, 26 U.S.C.A. §§ 41, 42, and the installment basis, I.R.C. § 44, 26 U.S.C.A. § 44. 8 United States v. Lewis, 1951, 340 U.S. 590, 592, 71 S.Ct. 522, 523, 95 L.Ed. 560. 9 4 Tiffany, Real Property, § 1147. 10 15A Fletcher, Cyclopedia Corporations, §§ 7369—7389. 11 3 Scott on Trusts, § 462.1; 3 Bogert, Trusts and Trustees, § 471. 12 Rutkin v. United States, 1952, 343 U.S. 130, 137, 72 S.Ct. 571, 575, 96 L.Ed. 833. 13 Eisner v. Macomber, 1920, 252 U.S. 189, 211, 40 S.Ct. 189, 194, 64 L.Ed. 521. 14 The rule announced in North American Oil v. Burnet, supra, requires a receipt without 'restriction on use' as well as under a claim of right. 15 I.R.C. § 1119, 26 U.S.C.A. § 1119, imposes upon the Commissioner the burden of proving transferee liability. This may be contrasted to the rule that normally the burden of proof is on the taxpayer contesting the determination of the Commissioner. I.R.C. § 1111, 26 U.S.C.A. § 1111, Rule 32, Tax Court of United States. 16 Transferee liability is secondary to the primary liability of the transferor. To sustain transferee liability the Commissioner must prove that he is unable to collect the deficiency from the transferor. 9 Mertens, Law of Federal Income Taxation, § 53.29. 17 G.C.M. 16730, XV—1 Cum.Bull. 179 (1936). 18 I.R.C. § 322(b), 26 U.S.C.A. § 322(b). See also I.R.C. §§ 275 and 311(b), 26 U.S.C.A. §§ 275, 311(b).
1112
345 U.S. 247 73 S.Ct. 656 97 L.Ed. 986 WESTERN PAC. R. CORP. et al.v.WESTERN PAC. R. CO. et al. METZGER et al. v. WESTERN PAC. R. CO. et al. Nos. 150 and 160. Argued Dec. 15, 16, 1952. Decided April 6, 1953. [Syllabus from pages 247-248 intentionally omitted] Mr. Herman Phleger, San Francisco, Cal., for Western Pacific R. Corp. and another. Mr. Julius Levy, New York City, for Meredith H. Metzger and others. Mr. Allan P. Matthew, San Francisco, Cal., for Western Pac. R. Co. and others. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 The petitioners in these causes—a corporation and some of its stockholders—seek an accounting from respondents—certain other corporations which, prior to a reorganization in 1943, were subsidiaries of the petitioning corporation. It is petitioners' theory that respondents had unjustly enriched themselves by wrongfully appropriating a 'tax loss' incurred by petitioner Western Pacific Railroad Corporation and applying it to the sole benefit of respondent Western Pacific Railroad Company. 2 The factual background upon which petitioners' complaint was founded is as complicated as it is unique. For present purposes, we may pass over it. Suffice it to say that the cause of action was founded on a theory of unjust enrichment; jurisdiction of the federal courts was invoked upon the grounds of the diverse citizenship of the parties. 3 The District Court denied relief, and the Court of Appeals affirmed by a two-to-one vote. Petitioners then applied for a rehearing before the Court of Appeals en banc. With one dissent, the rehearing was denied; the court in its order struck the request that the rehearing be en banc. Petitioners then filed a second application protesting that the action of the two judges, who struck out the request for a rehearing en banc, was error because such a request was authorized by statute and required the attention of the full court. 4 The Court of Appeals, en banc, declined to entertain this second application. Chief Judge Denman dissented. We granted certiorari; among other things, we deemed it important to resolve the en banc questions precipitated by this litigation. 344 U.S. 809, 73 S.Ct. 28. 5 The issues stem from 28 U.S.C. § 46(c), 28 U.S.C.A. § 46(c). It reads: 6 'Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges of the circuit.' 7 It is petitioners' claim that the Code vests in a defeated party the right to ask for a rehearing en banc; the court as a whole must act upon such a petition; thus the Court of Appeals erred in refusing to entertain the application in this case. 8 Obviously, the claim calls for close analysis of § 46(c). What particular right, if any, does it give to a litigant in a Court of Appeals? To what extent is he entitled to put the merits of his cause before each member of the court in pressing his demand for a hearing or a rehearing before the entire court? 9 In our view, § 46(c) is not addressed to litigants. It is addressed to the Court of Appeals. It is a grant of power. It vests in the court the power to order hearings en banc. It goes no further. It neither forbids nor requires each active member of a Court of Appeals to entertain each petition for a hearing or rehearing en banc. The court is left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing. 10 The statute, enacted in 1948, is but a legislative ratification of Textile Mills Securities Corp. v. Commissioner, 1943, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249—a decision which went no further than to sustain the power of a Court of Appeals to order a hearing en banc. When the statute is cast in historical perspective, this becomes more readily apparent. 11 As early as 1938, the Judicial Conference of Senior Circuit Judges1 recommended that the Judicial Code be amended to make it clear that 'the majority of the circuit judges may be able to provide for a court of more than three judges when in their opinion unusual circumstances make such action advisable.'2 The recommendation was renewed in 1939 and again in 1940.3 Thereafter, in 1941, when a conflict developed between circuits4 as to the power to sit en banc under the old Judicial Code, identical bills were introduced in both the House (H.R. 3390) and the Senate (S. 1053) to amend the Code as recommended by the Judicial Conference. The proposed amendment took the form of a proviso to § 117: 12 '* * * Provided, That, in a circuit where there are more than three circuit judges, the majority of the circuit judges may provide for a court of all the active and available circuit judges of the circuit to sit in banc for the hearing of particular cases, when in their opinion such action is advisable.' H.R. 3390, S. 1053, 77th Cong., 1st Sess. 13 When this legislation came up for a hearing before the Senate Judiciary Committee, Senator Danaher expressly raised the problem, 'On whose motion would the court assemble en banc?' He was told that counsel might make a 'suggestion,' but that 'the convening of the full court would be at the initiative of the court,' and that it would not be desirable 'to encourage the initiation of this suggestion by counsel.' Senator McFarland said that from looking at the provision he got the impression that 'they (the court) would be the ones to do the acting.' Senator Kilgore agreed. Senator Danaher concluded that the amendment would be 'impractical unless we make it clear that * * * the judges themselves decide.'5 14 This bit of legislative history is significant. Congress was attempting to frame legislation which would empower a majority of circuit judges in any Court of Appeals to 'provide' for hearings en banc. The problem was immediately raised: how would a court be convened en banc—would the legislation, as framed, give litigants the right to compel every judge to act on an application for a full court? The proponents of the legislation, and those who studied it, worked out this answer in their study of the problem: the determination of how the en banc power was to be exercised was to rest with the court itself—litigants should be free to suggest that a particular case was appropriate for consideration by the full court, but they should be given no right to compel all circuit judges to take formal action on the suggestion. 15 Subsequent history of later proposals—drafted in substantially similar language—discloses no change in purpose. The amendment to § 117 of the old Judicial Code passed the House, but it was never acted upon by the Senate.6 It may have died because this Court's decision in Textile Mills intervened. 16 The inter-circuit conflict which brought on the proposed amendment to § 117, and which was later resolved by the decision of this Court in Textile Mills, was purely a dispute over the power to sit en banc; it never reached the problem of how en banc proceedings were to be initiated. In Lang's Estate v. Commissioner, 9 Cir., 1938, 97 F.2d 867, the Ninth Circuit had held that under § 117 there was no way in which a circuit of more than three judges could provide the means to convene itself en banc. But the Third Circuit, in Textile Mills,7 reached a contrary conclusion: 17 '* * * we cannot agree with Judge Denman's contrary conclusion in Lang's Estate * * *. We conclude that this court has power to provide, as it has done by Rule 4(1), for sessions of the court en banc, consisting of all the circuit judges of the circuit in active service.' 117 F.2d 62, 70—71. (Emphasis supplied.) 18 In affirming the Third Circuit, this Court did no more than sustain that court's exercise of the 'power to provide * * * for sessions of the court en banc'. There is nothing in that decision to indicate that we recognized any right in parties to have their cases passed upon by more than three circuit judges. 19 This was the state of the law in 1944, when the movement to revise the Judicial Code was in its early stages. At that time, Judge Maris, Chairman of the Judicial Conference Committee on the Revision of the Judicial Code, submitted a memorandum to the House Committee on Revision of Laws. Pointing to this Court's decision in Textile Mills, he urged that the new code should expressly provide 'that except in cases and controversies * * * which the court by rule or special order directs to be heard by the full court, all cases and controversies brought before the court shall be heard by not more than three judges.'8 This proposal was the genesis of the present § 46(c).9 It was motivated by a dual purpose: to give express recognition to the doctrine of Textile Mills, while at the same time securing the tradition of three-judge courts against any further intrusion. 20 The first legislative draft of § 46(c) did not differ in any material respect from its present form,10 and the provision passed through the succeeding drafts and stages of legislative development without attracting any specific comment. But we are not left unassisted when we seek to divine the legislators' understanding of § 46(c). We have the Reviser's Notes, which are entitled to great weight.11 These comments were before Congress when it reviewed the proposed revision of the Code, and were relied upon to 'explain * * * the source of the law and the changes made in the course of the codification and revision.'12 21 The Revisers tell us that their purpose was twofold: to 'authorize the establishment of divisions of the court', and to 'provide for the assignment of circuit judges for hearings en banc.'13 Referring to the latter purpose, the notes quote extensively from this Court's opinion in Textile Mills.14 The language they quote is significant. It describes certain housekeeping functions of a Court of Appeals functions which cannot be discharged by the court unless, on its own motion, it convenes itself as a body and acts as a body—such as rule making, appointing clerks and fixing the times when court shall be held. Clearly the Reviser's Notes assimilated the power to sit en banc to the power to discharge these housekeeping functions, and it was precisely that description of the power which the Revisers saw fit to use in describing to Congress what they deemed to be the nature of the power conferred by § 46(c). 22 Furthermore, the Notes make it apparent that if the Revisers intended to do anything more than codify Textile Mills, their concern was with preserving the 'tradition' of three-judge courts against any further inroads.15 An interpretation of § 46(c), which authorizes litigants, of right, to compel nonsitting judges to act in every case, is certainly a departure from the tradition of three-judge courts—a most controversial change which was plainly not anticipated by Textile Mills. Yet Congress' purpose was codification, not alteration, of the rules pertaining to the administration of the courts. The Senate was told by its Judiciary Committee that 'great care has been exercised to make no changes in the existing law which would not meet with substantially unanimous approval.'16 Similarly, Judge Maris told the House Committee on the Judiciary that the new Code 'embodies a number of practical improvements in the judicial machinery of a wholly noncontroversial nature which have resulted from suggestions originating with the judges whose day to day administration of the various provisions of the Judicial Code gives them a special knowledge of these matters.'17 23 A first reading of § 46(c) may well leave one with doubts. It reposes power in 'a majority of * * * active circuit judges', and says no more. Perhaps, without further study, one might be inclined to fall back upon the general experience of our jurisprudence, and determine that the litigant is, by implication, given the right to compel the full court to determine whether it will exercise its power in a given case. But a study of the legislative background of § 46(c) dispels such an idea and makes it quite clear that the draftsmen intended to grant the en banc power and no more; the court itself was to establish the procedure for exercise of the power. 24 This interpretation makes for an harmonious reading of the whole of § 46.18 In this Section, Congress speaks to the Courts of Appeals: the court, itself, as a body, is authorized to arrange its calendar and distribute its work among its membership; the court, itself, as a body, may designate the places where it will sit. Ordinarily, added Congress, cases are to be heard by divisions of three. But Congress went further; it left no doubt that the court, by a majority vote, could convene itself en banc to hear or rehear particular cases. 25 The juxtaposition of this last enactment with the others negates petitioners' interpretation of the Act. Litigants are certainly given no special standing to partake, as of right, in the court's decisions pertaining to arrangement of its calendar and the assignment of its cases to divisions. Just as the statute makes no provision binding the court to entertain every request that a particular case be assigned to a particular division, so it should not be construed to compel the court to entertain, en banc, motions for a hearing or rehearing en banc. 26 A contrary reading—one which would sustain petitioners—would obviously require a practice which might thrust unwarranted extra burdens on the court. It is difficult to believe that Congress intended to give an automatic, second appeal to each litigant in a Court of Appeals composed of more than three judges. Yet petitioners would have us hold that such a 'horizontal' appeal is implicit in § 46. And, if petitioners are correct as to their claim that petitions for rehearing en banc must, as a matter of law, be passed upon by the full bench, the argument should apply equally to petitions requesting that the initial hearing of the case be en banc, because § 46(c) treats 'hearings' and 'rehearings' with equality. But, again, there is nothing to suggest that every party in every case in every Court of Appeals may submit, as of right, a petition to every judge—a petition in the nature of a preliminary appeal—asking that the full bench examine his cause and formally rule on the question of whether it shall be heard en banc. 27 Accordingly, we hold that § 46(c) does not require a Court of Appeals to do what petitioners claim should have been done in this case. The statute deals, not with rights, but with power. The manner in which that power is to be administered is left to the court itself. A majority may choose to abide by the decision of the division by entrusting the initiation of a hearing or rehearing en banc to the three judges who are selected to hear the case. On the other hand, there is nothing in § 46(c) which requires the full bench to adhere to a rule which delegates that responsibility to the division. Because § 46(c) is a grant of power, and nothing more, each Court of Appeals is vested with a wide latitude of discretion to decide for itself just how that power shall be exercised.19 28 But even if the statute grants only power plus the discretion for its exercise, that does not mark the end of our review of the en banc phase of this case. The en banc power, confirmed by § 46(c), is, as we emphasized in the Textile Mills case, a necessary and useful power—indeed too useful that we should ever permit a court to ignore the possibilities of its use in cases where its use might be appropriate.20 If § 46(c) is to achieve its fundamental purpose, certain fundamental requirements should be observed by the Courts of Appeals. In the exercise of our 'general power to supervise the administration of justice in the federal courts,'21 the responsibility lies with this Court to define these requirements and insure their observance. 29 It is essential, of course, that a circuit court, and the litigants who appear before it, understand the practice— whatever it may be—whereby the court convenes itself en banc. In promulgating the rules governing that procedure the court should recognize the full scope of its powers under § 46(c). Consistent with the statute, the court may, as has been shown, adopt a practice whereby the majority of the full bench may determine whether there will be hearings or rehearings en banc, or they may delegate the responsibility for the initiation of the en banc power to the divisions of the court. But in recognizing the full scope of § 46(c), the full membership of the court will be mindful, of course, that the statute commits the en banc power to the majority of active circuit judges so that a majority always retains the power to revise the procedure and withdraw whatever responsibility may have been delegated to the division. And, recognizing the value of an efficient use of the en banc power, the court should adopt such means as will enable its full membership to determine whether the court's administration of the power is achieving the full purpose of the statute so that the court will better be able to change its en banc procedure, should it deem change advisable. 30 It is also essential that litigants be left free to suggest to the court, or to the division—depending upon where power of initiation resides, as determined by the active circuit judges of the court—that a particular case is appropriate for consideration by all the judges. A court may take steps to use the en banc power sparingly, but it may not take steps to curtail its use indiscriminately. Counsel are often well equipped to point up special circumstances and important implications calling for en banc consideration of the cases which they ask the court to decide.22 If, in the exercise of its discretion under s 46(c), a court denies litigants the privilege of reaching the ear of every circuit judge on the en banc question, there is still no reason to deny them access to the few circuit judges who must act initially, and perhaps decisively, on the matter for the others. Counsel's suggestion need not require any formal action by the Court; it need not be treated as a motion; it is enough if the court simply gives each litigant an opportunity to call attention to circumstances in a particular case which might warrant a rehearing en banc.23 And of course to hold that counsel are entitled to sepak to the en banc question, is not to hold that the court itself is in any way deprived of the power to initiate en banc hearings sua sponte. The statute commits the power of initiation to the court; the litigants' function must therefore be limited; but, certainly, if the en banc power is to be wisely utilized, there is no reason to deny the litigants any chance to aid the court in its effective implementation of the statute. 31 Finally, it is essential to recognize that the question of whether a cause should be heard en banc is an issue which should be considered separate and apart from the question of whether there should be a rehearing by the division. The three judges who decide an appeal may be satisfied as to the correctness of their decision. Yet, upon reflection, after fully hearing an appeal, they may come to believe that the case is of such significance to the full court that it deserves the attention of the full court. 32 The foregoing should make it clear that rejection of petitioners' interpretation of § 46(c) does not compel affirmance of all that was done below in disposing of the applications for a rehearing en banc. It should also be decided whether the en banc issue has been adequately treated by the Court of Appeals. A review of the proceedings below convinces us that further consideration by that court is appropriate. 33 After the division which heard the appeal had announced its decision, petitioners asked for a rehearing en banc. A per curiam issued from the division (197 F.2d 1012): 34 'The petitions of the appellants and intervenors for a rehearing are denied. Insofar as the petitions seek a rehearing en banc, they are stricken as being without authority in law or in the rules or practice of the court. See Kronberg v. Hale, 9 Cir., 181 F.2d 767.' 35 The striking of petitioners' motion is certainly ambiguous. If we accord full legal significance to this order, we must conclude that the division ruled that counsel were not free to suggest, even to the division, that the case was appropriate for a rehearing en banc. Enough has already been said to show that this was error. 36 Indeed, if the three judges who decided the merits of this cause were of the opinion that counsel's request was 'without authority in law', it may well be that they simply considered themselves powerless to act in any way on the en banc question. Two judges on the panel were district judges.24 One district judge dissented from the denial of a rehearing, and his understanding of the procedure which the Court of Appeals utilized to convene its full bench seems to differ from what was subsequently announced by six members of the court.25 Indeed, at that time, it was by no means clear just what procedure the court followed to convene itself en banc.26 37 Following the second decision of the division, petitioners renewed their demand for a rehearing en banc by asking the court to reinstate their petition. Chief Judge Denman convened the active circuit judges so that the court might determine its authority in the matter, set forth its interpretation of § 46(c) and fully advise the bar of its determination. Accordingly the court, en banc, declined to entertain petitioners' application and proceeded to explain why. Construing § 46(c) the court said: 197 F.2d, at page 1015: 38 'The statute, it will be recalled, commits to a 'court or division of * * * three judges' the power to hear and determine the cases and controversies assigned to it. Obviously its determination of any such case or controversy is a decision of the Court of Appeals, and as such is a final decision, subject to review only as prescribed by 28 U.S.C.A. § 1254. Circuit judges other than those designated to sit on such court or division are not members of it, and officially they play, and are entitled to play, no part in its deliberations at any stage. That this is so is made clear by subdivision (a) of § 46 * * * providing that 'Circuit judges shall sit on the court and its divisions in such order and at such times as the court directs.' If regard be had for this mandate circuit judges may not intrude themselves, or be compelled on petition of a losing party to intrude, upon a court or division on which they have not by order of the court been directed to sit. 39 'A petition for rehearing in any such case, whatever its form or wording, must necessarily be treated as addressed to and is solely for disposition by the court or division to which the case was assigned for determination. * * * From this time forward petitions, if any, for rehearing * * * in cases determined by divisions of three judges will be considered and disposed of by the latter as ordinary petitions for rehearing.' 40 This language suggests that the full bench has refused completely to consider the merits of the en banc request. Instead, the court ruled that, 'From this time forward', the division, alone, is entrusted with that responsibility. Yet there is nothing to show that this procedure, which the full bench said was to govern henceforth, had been followed by the division in this case. On the contrary, as has been shown, the division in this case apparently acted on the theory that it was 'without authority in law' to consider the en banc request. 41 This language also suggests that the court thought that it had no discretion in administering the en banc power, that § 46(c) 'necessarily' limited consideration of the question of whether there should be a hearing en banc to the division. Perhaps other language in the opinion27 negates the inference that the full court ruled as it did because it believed the statute required that result and permitted no alternative practice. But, at the very least, we are left in doubt. Certainly Chief Judge Denman, who dissented vigorously, thought that the court's ruling came as a matter of statutory compulsion. And of course if it did, it rests on an erroneous interpretation of § 46(c). 42 We have, then, a record which seems to tell us that the division of the Court of Appeals, which decided the merits of this difficult and complicated litigation, turned a deaf ear to counsel's request for a full bench—quite conceivably on the theory that the division lacked the power to act. Likewise the full bench refused to countenance the request, saying that the initial responsibility 'necessarily' lay with the division alone—although the division may have been unaware of that responsibility. Possibly acting under a misconception of the breadth of its powers, the full bench has promulgated rules for the hearing of cases en banc, and if the court has misconceived its powers perhaps it may now wish to adopt some other practice to administer § 46(c). 43 The statute which we have construed is not without ambiguity; perhaps that difficulty is now resolved. The action of the court below is also not without ambiguity, for the court announced a practice which, 'from this time forward,' was to govern the ordering of rehearings en banc, but that practice was not followed in this case; neither the full bench nor the division—whose decision was to govern henceforth—gave any independent consideration to the merits of the en banc issue in this case. 44 Accordingly, we vacate the order of the division denying petitioners a rehearing and vacate the order of the full court denying petitioners leave to file a motion to reinstate their petition for rehearing en banc; we remand the case to the Court of Appeals for further proceedings. We hold that the statute is simply a grant of power to order hearings and rehearings en banc and to establish the procedure governing the exercise of that power. We hold that litigants are given no statutory right to compel each member of the court to give formal consideration to an application for a rehearing en banc. We hold that the statute does not compel the court to adopt any particular procedure governing the exercise of the power; but whatever the procedure which is adopted, it should be clearly explained, so that the members of the court and litigants in the court may become thoroughly familiar with it; and further, whatever the procedure which is adopted, it should not prevent a litigant from suggesting to those judges who, under the procedure established by the court, have the responsibility of initiating a rehearing en banc, that his case is an appropriate one for the exercise of the power. On remand, and in light of our interpretation of the statute and the basic requirements necessary for its efficient administration, the court should determine and clearly set forth the particular procedure it will follow, henceforth, in exercising its en banc power. If the court chooses to abide by a procedure which entrusts the initiation of rehearings en banc to the division, then the court should give an opportunity to the division for appropriate consideration of that question in this case. 45 Order vacated and case remanded with directions. 46 Mr. Justice FRANKFURTER. 47 We held in Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249, construing an ambiguous statute, that courts of appeals consisting of more than three active circuit judges had inherent power to sit en banc. Thereafter Congress placed this power on a statutory basis. 28 U.S.C. § 46(c), 28 U.S.C.A. § 46(c). Petitioners in this case claim that, in exercising the authority to sit en banc for the rehearing of a cause adjudicated by a three-judge panel, all the active judges of a court of appeals must formally consider the merits of the defeated party's formal motion for such a rehearing. I agree with the Court in its rejection of this claim. I equally agree that, as an abstract proposition, en banc sitting expresses the Court's power and not the litigant's right. I agree, finally, that courts of appeals may have general rules, whether formally promulgated or traditionally recognized, concerning the exercise of this discretionary power, and that it is for them and not for us to establish such rules. 48 No one can feel more strongly than I do that the function of the courts of appeals in the federal judicial system requires that their independence, within the area of their authority, be safeguarded. 'Certainly this Court should in every possible way attribute to (them) a prestige which invites reliance for the burdens of appellate review except in those cases, relatively few, in which this Court is called upon to adjudicate constitutional issues or other questions of national importance.' Ex parte Peru, 318 U.S. 578, 590, 602, 63 S.Ct. 793, 800, 806, 87 L.Ed. 1014 (dissenting opinion). And so what follows is not to be read as suggesting subordination of the discretionary powers of the courts of appeals to our direction. 49 The language of 28 U.S.C. § 46(c), 28 U.S.C.A. § 46(c), and its history do not, I believe, indicate either that Congress expected courts of appeals to sit en banc for the disposition of motions praying that they hear or rehear causes en banc, or that Congress expected they would not do so. The hearings on S. 1053 the predecessor proposal of § 46(c), which failed of passage—are equivocal on this point. Remarks, such as Senator McFarland's, that the courts 'would be the ones to do the acting' graze the problem. It was not urged that counsel should do the 'acting' in the sense that it would be mandatory to grant a motion for rehearing en banc whenever one was made. Ther was on the other hand the testimony of Chief Justice Groner of the Court of Appeals of the District, who indicated quite clearly that counsel would be expected to move the courts to sit en banc. Hearings before a Subcommittee of the Senate Committee on the Judiciary on S.1050, S.1051, S.1052, S.1053, S.1054 and H.R.138, 77th Cong., 1st Sess., at pp. 17, 40. The view of so experienced and wise a judge carries great weight. In any event, this is the legislative history of a bill which never became law. No legislative light was shed on § 46(c). 50 It is right to conclude that Congress left it to the courts of appeals to decide how they would exercise their discretionary power to sit en banc. But it is no less reasonable to conclude that the courts of appeals are to exercise their discretion so as to effectuate the purposes of the legislation. Before I proceed with consideration of the modes by which the power to sit en banc may be brought into play, in light of the ends to be achieved by it, a word about rehearings in general becomes relevant. 51 Rehearings are not a healthy step in the judicial process; surely they ought not to be deemed a normal procedure. Yet one who has paged the Federal Reporter for nearly fifty years is struck with what appears to be a growth in the tendency to file petitions for rehearing in the courts of appeals. I have not made a quantitative study of the facts, but one gains the impression that in some circuits these petitions are filed almost as a matter of course. This is an abuse of judicial energy. It results in needless delay. It arouses false hopes in defeated litigants and wastes their money. If petitions for rehearing were justified, except in rare instances, it would bespeak serious defects in the work of the courts of appeals, an assumption which must be rejected. It is important to bear this in mind in approaching 28 U.S.C. § 46(c), 28 U.S.C.A. § 46(c). That section is directed at those relatively few instances which call for rehearings, though again rarely, in the nine courts of appeals that sit in panels. 52 Rehearings en banc by these courts, are to some extent necessary in order to resolve conflicts between panels. This is the dominant concern. Moreover, the most constructive way of resolving conflicts is to avoid them. Hence, insofar as possible, determinations en banc are indicated whenever it seems likely that a majority of all the active judges would reach a different result than the panel assigned to hear a case or which has heard it. Hearings en banc may be a resort also in cases extraordinary in scale—either because the amount involved is stupendous or because the issues are intricate enough to invoke the pooled wisdom of the circuit. Any procedure devised by a court of appeals which is sensibly calculated to achieve these dominant ends of avoiding or resolving intra-circuit conflicts may be adopted agreeably with § 46(c). A rule providing that petitions for rehearing en banc may be made to, and will be considered by, the court en banc would, of course, be so calculated. And, to repeat, that being so, it is not for us to pass on the advantages or disadvantages of such a rule, though one may think, as I do, that it is likely to impose an undue burden by unwittingly encouraging the lax inclination of counsel to file pro forma petitions automatically in every case. 53 The ends of § 46(c) may be served in other ways than by permitting petitions for rehearing en banc. A court may decide that it will act under § 46(c) only sua sponte and will do so whenever the need is made evident, not by wasteful use of judicial resources through excessive preliminary consideration en banc to determine whether or not the need exists, but by the process of having each panel circulate its opinions, before they are emitted, to all the active members of the court. This, it appears, was the practice of the Court of Appeals of the District under Chief Justice Groner. See Hearings before a Subcommittee of the Senate Committee on the Judiciary, supra, at p. 39. It accomplishes what is essential to the achievement of the purposes for which the power to sit en banc exists, since it acquaints all active judges on the court 'with the proposed opinion that is coming down, so if they do have an opportunity to point out any conflict, or something of the kind, it may be done * * *.' Ibid. (testimony of Groner, C.J.). To be sure, the nonsitting judges have not heard the argument nor read the briefs, and have no vote as far as the opinion of the panel is concerned. Presumably, however, an opinion states the issues and gives the grounds for its conclusion and thereby sufficiently alerts the minds of experienced judges to what is at stake. It taps their knowledge of legal considerations that may lead, on the initiative of a nonsitting or of a sitting judge, to a determination by the entire court of whether or not a rehearing en banc is called for. 54 There may be—there doubtless are—other ways in which a court of appeals, acting sua sponte, may accomplish all that needs to be accomplished in the exercise of the discretionary power to sit en banc. But I do not see how any procedure can do so whose effect is not to apprise all active judges either of all decisions of panels of the Court, or of those decisions which counsel bring to the Court's attention, by motion or suggestion—the nomenclature is immaterial—as raising the problems at which the grant of power in § 46(c) is directed. For this reason I do not believe that a delegation of authority to the panel which heard the case to dispose finally, in behalf of the entire court, of petitioners for rehearing en banc—if there are to be such petitions and if through them alone § 46(c) is to be implemented—would constitute adoption of a permissible procedure for the exercise of the power conferred by § 46(c). It may be proper to require petitions for rehearing en banc to be made to the panel in the first instance, but to allow the discretionary function under § 46(c) to be discharged definitively by the panel whose judgment may call for en banc action is to treat the statute as an empty, purposeless form of words. 55 Since it does not appear in this case that the Court of Appeals, as a whole, at any time exercised its discretion under 28 U.S.C. § 46(c), 28 U.S.C.A. § 46(c), by considering the petition for a rehearing en banc on its merits, and since it does not appear that that court has established, and followed in this case, any other procedure for the exercise of its statutory power in a manner consistent with the reasons for its grant, I concur in the judgment of the Court vacating the order below and remanding the cause. 56 Mr. Justice JACKSON, dissenting. 57 I would not prolong this already aged litigation by remanding it for the Court of Appeals to reconsider whether it will hold a rehearing en banc. The decision that an individual litigant has a right to have his petition for rehearing en banc considered by at least three judges of the Court of Appeals stems not from statute, but from this Court's exercise of its vague supervisory powers over federal courts. 58 If I felt it incumbent upon me to help settle for Courts of Appeals whether they will sanction a practice of petitioning by litigants for en banc rehearings, I would decide in the negative. In cases of intracircuit conflict or other exceptional situations which actually demand the attention of the full court, the judges of a court should be trusted to convene on their own initiative.1 A successful party has good cause for complaint if he is put through the added expenditure of this dilatory step except where public interest in the administration of justice requires it. Rehearings en banc are not appropriate where the effect is simply to interpose another review by an enlarged Court of Appeals between decision by a conventional three-judge court and petition to this Court. Delay, cost, and uncertainty, which take their toll of both the successful and the unsuccessful, the just and the unjust litigant, are each increased by an additional appeal to a hybrid intermediate court. Moreover, the fact that the court leaves the precise nature of the right which it confers on the losing litigant so unsettled and equivocal would lead me to conclude that the en banc question is one which the litgant should not be given standing to raise. 59 If I were to predict, I would guess that today's decision will either be ignored or it will be regretted. Perhaps its requirements may be met if the panel which heard the case will append to its denial of rehearing the further statement 'and rehearing en banc denied.' This would be its most innocuous possible effect. Unfortunately, however, more significant results may follow. It is likely to open new complexities in federal practice and generate a new body of procedural law to vex courts and impoverish litigants. The litigant's petition for rehearing en banc is not a motion; it is a 'suggestion.' He is urged to point out to the judges the 'circumstances in a particular case which might warrant rehearing en banc.' There may yet be chapters in future manuals of federal practice exploring the differences between a motion and a 'suggestion,' and cases in the courts deciding just what more the suggesting litigant is entitled to than the right to have the words 'petition denied' instead of 'petition stricken.' This increase in the ponderousness of the federal court system may be a minor rather than a major evil, but it is counterbalanced, at most, only by a negligible good. 60 But just as surely as I am persuaded that en banc hearings should be discouraged in most cases and left to be initiated by the judges sua sponte, I am convinced that the whole practice on the subject is best left to each Court of Appeals. A diversity of practices has grown up in the various courts,2 presumably in response to their different conditions or prevailing desires. If Congress had required that litigants' petitions for rehearing en banc receive the consideration of the Courts of Appeals, the policy would be ours to enforce without questioning its desirability. But it is conceded that Congress has not done this. It is we ourselves who are making the policy, and so it is especially desirable to vindicate our new rule with reasons and bounds. Yet, all that we are vouchsafed in the Court's opinion is that the power to sit en banc is a 'necessary and useful power,' with a citation to our holding that a Court of Appeals has power to sit en banc. Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249. When it is remembered that the question to be answered here is not whether Courts of Appeals have power to sit en banc, about which there is no dispute, but rather whether a litigant may compel the judges to hear and decide his petition for rehearing en banc, the feebleness of this reed is clear. I think both wisdom and humility would be well served by leaving this problem to the solutions from time to time suggested to each circuit by its own experience. 61 The case before us presents interesting questions on which there appears no conflict between panels; in fact, it is so unique that it is without precedent and is likely to be without progeny. A rehearing before the entire circuit en banc would simply be an appeal from the three-judge court to a swollen circuit court. Since I would not reverse on the procedural point, I reach the merits of the controversy. 62 The complaint alleges diversity of citizenship, presence of the requisite amount in controversy, and states that 'this is a civil action in equity between citizens of different states.' Because federal jurisdiction was grounded in diversity of citizenship, California law is the law of the forum and may govern the case. However, foreign corporations, acts committed in other states, federal bankruptcy proceedings and federal tax rulings are scrambled in the legal situation and law of other states may be involved. California certainly recognizes a cause of action based on unjust enrichment, whether it be treated as a common count, Minor v. Baldridge, 123 Cal. 187, 190, 55 P. 783, 785, or as a waiver of a tort and suit in assumpsit, Bank of America National Trust & Savings Ass'n v. Hill, 9 Cal.2d 495, 71 P.2d 258. Whether we resort to California law, other state law or federal law, none rejects the general doctrine of unjust enrichment and fiduciary duty of corporate managements, although it would be surprising if there were an exact precedent anywhere for this unique situation. Thus, the courts below would have to analyze the facts in the light of general principles of unjust enrichment, with such aid as they may obtain on the specific issues from analogy. 63 We have two affiliated corporations subject to considerable, if not complete, common control, but with different minority interests. One has realized a huge loss; the other has enjoyed large net income. If these two can be brought together, a tax saving amounting in this case to some seventeen million dollars can be made for the profitable company. Congress has authorized, but has not required, that these two be merged by means of a consolidated tax return. Each has the right, but no legal duty, under federal law to join in consolidated returns. 64 It may seem anomalous at first glance that a sustained loss can be realized upon as an asset. But it is not the loss; it is the right to use the loss as an offset that is valuable. The market for it is restricted, of course, but this detracts nothing from its value to one in a position to utilize it. 65 Each of these corporations had something to contribute to a tax-saving plan. Either one alone was helpless. But I know of no moral or legal obligation to give away any legal opportunity or advantage just because its owner cannot utilize it himself. 66 There would have been nothing remotely illegal or improper if the management of the plaintiff corporation had demanded some compensation for its loss privileges. Indeed, it is probable that the intention of the statute permitting the consolidation of the two positions was to provide salvage for the loser, not profit for one which sustained no loss. 67 Each corporation then had a bargaining position. The stakes were high. Neither could win them alone, although each had an indispensable something that the other was without. It was as if a treasure of seventeen million dollars were offered by the Government to whoever might have two keys that would unlock it. Each of these parties had but one key, and how can it be said that the holder of the other key had nothing worth bargaining for? DP The management, probably without improper intent, failed to claim for the plaintiff the advantages of its position, turning them over without compensation for the advantage and profit of another affiliated corporation. On the face of it, the conclusion would seem warranted that the plaintiff is entitled to what fair arm's-length bargaining would probably have yielded. To ask this can hardly be stigmatized as capitalizing mere nuisance value. This is not the blackmailing transaction which offers to forego doing another injury if bought off. This merely seeks a share in the benefit which it transferred. 68 I would reverse and remand to the District Court for findings in accordance with this sketchily stated doctrine of unjust enrichment. 1 Now the Judicial Conference of the United States. 2 Report of the Attorney General (1938) p. 23. For a full treatment of statutory difficulties which gave rise to some doubts as to the power to sit en banc, see Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326, 328—330, 62 S.Ct. 272, 274—275, 86 L.Ed. 249. 3 Report of the Attorney General (1939) pp. 15, 16. Report of the Judicial Conference of Senior Circuit Judges (1940) p. 7. 4 Lang's Estate v. Commissioner, 9 Cir., 1938, 97 F.2d 867; Commissioner v. Textile Mills Securities Corp., 3 Cir., 1940, 117 F.2d 62, discussed in text infra. 5 The full text of this discussion is found in the Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 1053, 77th Cong., 1st Sess. 6 87 Cong.Rec. 8328. See H.R.Rep.No. 1246, 77th Cong., 1st Sess. Much of this legislative history is set out in footnote 14 of Mr. Justice Douglas' opinion for the Court in Textile Mills. 7 Supra, note 4. 8 Memorandum of August 18, 1944, submitted to the Committee on Revision of Laws on August 21, 1944. (Emphasis supplied.) See note 9, infra. 9 Revision of Federal Judicial Code, Preliminary Draft (of H.R. 3498, 79th Cong., 1st Sess.), Committee Print (1945), p. 11. The Reviser's Notes to § 46(c) in this preliminary draft contained the following: 'Such subsection (c) is based on recommendations of Circuit Judge Albert B. Maris of the third circuit in his memorandum dated August 18, 1944, and submitted to the Committee on Revision of the Laws on August 21, 1944.' 10 H.R. 3498, 79th Cong., 1st Sess. § 46(c) read: '(c) In each circuit cases shall be heard and determined by a court or division of not more than three judges unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges present and available in the circuit.' The section same into its present form in the next draft, H.R. 7124, 79th Cong., 2d Sess. § 46(c). 11 Ex parte Collett, 1949, 337 U.S. 55, 68—71, 69 S.Ct. 944, 951—952, 93 L.Ed. 1207. 12 S.Rep.No.1559, 80th Cong., 2d Sess., p. 2. 13 The full text of the Reviser's Note (28 U.S.C., Cong.Serv. '48, pp. 1707—1708) reads: 'Based in part on (Title 28, U.S.C., 1940 ed., § 212) Act Mar. 3, 1911, c. 231, § 117, 36 Stat. 1131. 'Subsections (a)—(c) authorize the establishment of divisions of the court and provide for the assignment of circuit judges for hearings and rehearings in banc. 'The Supreme Court of the United States has ruled that, notwithstanding the three-judge provision of section 212 of Title 28, U.S.C., 1940 ed., a court of appeals might lawfully consist of a greater number of judges, and that the five active circuit judges of the third circuit might sit in banc for the determination of an appeal. (See Textile Mills Securities Corporation v. Commissioner of Internal Revenue, 1941, 62 S.Ct. 272, 314 U.S. 326, 86 L.Ed. 249.) 'The Supreme Court in upholding the unanimous view of the five judges as to their right to sit in banc, notwithstanding the contrary opinion in Lang's Estate v. Commissioner of Internal Revenue, 9 Cir., 1938, 97 F.2d 867, said in the Textile Mills case: 'There are numerous functions of the court, as 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 (28 U.S.C., § 219); the making of rules and regulations (28 U.S.C., § 219); the appointment of a clerk (28 U.S.C., § 221) and the approval of the appointment and removal of deputy clerks (28 U.S.C., § 222); and the fixing of the 'times' when court shall be held (28 U.S.C., § 223). Furthermore, those various sections of the Judicial Code provide that each of these functions shall be performed by the 'court'.' 'This section preserves the interpretation established by the Textile Mills case but provides in subsection (c) that cases shall be heard by a court of not more than three judges unless the court has provided for hearing in banc. This provision continues the tradition of a three-judge appellate court and makes the decision of a division, the decision of the court, unless rehearing in banc is ordered. It makes judges available for other assignments, and permits a rotation of judges in such manner as to give to each a maximum of time for the preparation of opinions. 'Whether divisions should sit simultaneously at the same or different places in the circuit is a matter for each court to determine.' 14 314 U.S., at page 332, 62 S.Ct. at page 276. 15 See the next to final paragraph quoted in note 13, supra. 16 S.Rep.No.1559, 80th Cong., 2d Sess., p. 2. (Emphasis supplied.) 17 Hearings before Subcommittee No. 1 of the Committee on the Judiciary of the House of Representatives on H.R. 2055, 80th Cong., 1st Sess. 19. (Emphasis supplied.) 18 The full text of 28 U.S.C. § 46, 28 U.S.C.A. § 46, reads: 'Assignment of judges; divisions; hearings; quorum '(a) Circuit judges shall sit on the court and its divisions in such order and at such times as the court directs. '(b) In each circuit the court may authorize the hearing and determination of cases and controversies by separate divisions, each consisting of three judges. Such divisions shall sit at the times and places and hear the cases and controversies assigned as the court directs. '(c) Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges of the circuit. '(d) A majority of the number of judges authorized to constitute a court or division thereof, as provided in paragraph (c), shall constitute a quorum.' 19 Having wide discretion the court may provide that the power may be called in to play by any procedure convenient to the court. The statute simply provides that 'a majority of the circuit judges of the circuit who are in active service' may order the hearing or rehearing en banc. This should not compel the full court to assemble, formally, en banc, to issue an order convening the full court. A more informal procedure may be used; such an order may be issued by the Chief Judge through the individual action of the necessary circuit judges without the necessity of convening the full court. 20 See 314 U.S., at pages 334—336, 62 S.Ct. at pages 277 278. For further discussion on the utility and importance of permitting courts of appeals to sit en banc, reflecting the purpose behind § 46(c), see H.R.Rep.No.1246, 77th Cong., 1st Sess.; Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 1053, 77th Cong., 1st Sess., pp. 39—40. See also Annual Report of the Attorney General (1939) pp. 15, 16; Report of the Judicial Conference of Senior Circuit Judges (1940) p. 7. That this Court has deemed the en banc power to be an important and useful device in the administration of justice in the courts of appeals is apparent from our action in United States ex rel. Robinson v. Johnston, 1942, 316 U.S. 649, 62 S.Ct. 1301, 86 L.Ed. 1732, and Civil Aeronautics Board v. American Air Transport Inc., 1952, 344 U.S. 4, 73 S.Ct. 2. In the Robinson case, supra, where it appeared that a 'conflict of views' had arisen 'among the judges of the Ninth Circuit', we remanded the case 'for further proceedings, including leave to petitioner to apply for a hearing before the court en banc.' 316 U.S. 649, 650, 62 S.Ct. 1301. In the American Air Transport case, supra, where the division of the Court of Appeals 'were unable to agree on a disposition of the case,' we said, after dismissing the certificate: 'Perhaps the Court of Appeals may now wish to hear this case en banc to resolve the deadlock indicated in the certificate and give full review to the entire case.' 344 U.S., at page 5, 73 S.Ct. at page 3. 21 See United States v. National City Lines, 1948, 334 U.S. 573, 589, 68 S.Ct. 1169, 1178, 92 L.Ed. 1584. 22 Cf. United States ex rel. Robinson v. Johnston, 1942, 316 U.S. 649, 62 S.Ct. 1301, 86 L.Ed. 1732; Civil Aeronautics Board v. American Air Transport, Inc., 1952, 344 U.S. 4, 73 S.Ct. 2. 23 Similarly, to hold that counsel can 'suggest' that the court exercise its en banc power is not to hold that counsel are entitled, as of right, to petition the full court to order that the initial hearing of a case be en banc. Suggestions filed with the court prior to the assignment of a case to a division or prior to the hearing before a division should not necessarily require special advance consideration by the court. They may be considered whenever the court or division deems it appropriate to consider them, and no formal action need be taken upon the suggestion. 24 That a Court of Appeals may be so constituted is, of course, clear. See 28 U.S.C. § 292(a), 28 U.S.C.A. § 292(a). And we do not mean to imply that the division which heard the merits of the appeal was any less a division of the Court of Appeals than would have been a division of three circuit judges. 25 The dissenting judge wrote, 197 F.2d at page 1013: 'I therefore suggest to the Court of Appeals a rehearing en banc of all the Circuit Judges. For this there is precedent in this Circuit. The practice, as I understand it, substantially accords with that of the Third Circuit, which is admirable. Inasmuch as this might be the court of last resort in this case, it seems fairer to have the issues disposed of by Circuit Judges.' 26 Compare Crutchfield v. United States, 9 Cir., 1943, 142 F.2d 170, 178 note 3; Independence Lead Mines Co. v. Kingsbury, 9 Cir., 1949, 175 F.2d 983, 992; and Kronberg v. hale, 9 Cir., 1950, 181 F.2d 767. See 63 Harv.L.Rev. 1449 (1951). 27 Thus the Court wrote: 'On these considerations and in harmony with its understanding of the statutory scheme, the court has consistently retained to itself as a matter of administrative and intramural concern only the problem whether or not any given case should be heard or reheard in banc. Accordingly, in the exercise of its uncontrolled discretion the court has declined altogether to entertain petitions of litigants for such hearings. The position it takes is that, apart from the possible disqualification of a judge, the composition of the court to which a case may be assigned for determination is a matter wholly outside the province of the parties.' In Bradley Mining Co. v. Boice, 9 Cir., 1952, 198 F.2d 790, Judge Pope dissenting from the denial of a petition for a rehearing en banc wrote: '* * * I do not think the statute intended that I, not a member of the division which heard the Western Pacific case (9 Cir., 197 F.2d 994), should have to read all the record in that case, as I might well find necessary in order to vote intelligently upon the petition. 'There is language in subdivision (c) of § 46 of Title 28 which would seem to grant to a majority of the circuit judges of the circuit the right to order a hearing or rehearing in bank in any case, a procedure which I am of course not proposing here. That is a question which was not determined by the majority opinion in the Western Pacific case, although Judge Denman seems to think that it was. Upon that question I reserve judgment until such time as determination becomes necessary.' 198 F.2d at page 792, note 2. 1 The Ninth Circuit has followed this procedure on several occasions. Southern Pacific Co. v. Guthrie, 9 Cir., 186 F.2d 926; Hopper v. United States, 9 Cir., 142 F.2d 181; Pacific Gas & Electric Co. v. Securities and Exchange Commission, 9 Cir., 139 F.2d 298; Evaporated Milk Association v. Roche, 9 Cir., 130 F.2d 843. 2 5 Stan.L.Rev. 332, 337, notes the practices of some of the Courts of Appeals as follows, based on information received from the clerks of the respective courts: The Court of Appeals for the District of Columbia Circuit considers all motions for rehearing en banc; the Sixth Circuit and the Tenth Circuit sit only on the motion of one of the judges; the Second Circuit simply does not sit en banc.
89
345 U.S. 344 73 S.Ct. 693 97 L.Ed. 1061 UNITED STATESv.CERTAIN PARCELS OF LAND IN FAIRFAX COUNTY, COMMONWEALTH OF VIRGINIA, et al. No. 253. Argued Jan. 9, 1953. Decided April 6, 1953. Rehearing Denied May 18, 1953. See 345 U.S. 960, 73 S.Ct. 936. Mr. Rowland F. Kirks, Washington, D.C., for petitioner. Mr. Frederick A. Ballard, Washington, D.C., for respondents. Mr. Justice CLARK delivered the opinion of the Court. 1 This nine-year-old proceeding is for the condemnation of certain easements in land and title to sewer mains which together comprise the sewerage system of Belle Haven, a residential subdivision in Fairfax County, Virginia. It was brought under the authority of Title II, § 202 of the Act of June 28, 1941, 55 Stat. 361,1 and a rider on the Appropriation Act of July 15, 1943, 57 Stat. 565,2 both amendments to the Lanham Act of October 14, 1940, 54 Stat. 1125, 42 U.S.C. § 1521 et seq., 42 U.S.C.A. § 1521 et seq. Questions important in the administration of the Act moved us to grant certiorari, 344 U.S. 812, 73 S.Ct. 44, to review the dismissal of the government petition. 4 Cir., 196 F.2d 657, affirming, D.C., 101 F.Supp. 172. 2 During World War II defense housing needs in the Washington area led the government to construct a large sewer project to serve defense housing properties in Fairfax County. It sought to utilize, as a part of its trunkline sewer, existing easements containing sewer pipes in the system originally constructed by respondent Belle Haven Realty Corporation. Negotiations produced an agreement under which the corporation, still holder of the fee, was to accept nominal compensation for its sewer properties on the condition that the government take the entire system and that the final order protect the Belle Haven householders against any future charges for its use. The government then filed a condemnation petition together with a declaration of taking and deposited estimated just compensation of $2. Possession was taken under court order, Belle Haven's outfalls into the Potomac River blocked off, and its sewage diverted into the government's trunkline system. In 1948, a group of Belle Haven householders intervened as defendants, alleging that the government had leased the integrated system to the Fairfax County Board of Supervisors and that the latter had undertaken to assess a use charge of $2 per month against each householder in Belle Haven subdivision. The intervenors claimed that they were the equitable owners in fee of the Belle Haven system since the developing corporation had included its construction cost in the purchase price of their lots, that they had been granted easements of user in that system and that the use charges assessed exceeded reasonable maintenance and operation costs. The prayer was that the court, in lieu of direct compensation for their interest, protect them against having to contribute to the amortization of the integrated system. The court decided that the householders had acquired implied easements in the Belle Haven system for which they were entitled to claim compensation and intervention was granted. D.C., 89 F.Supp. 571. But the district judge held that he could not make an award in the form of a limitation on future use charges and he denied a temporary injunction against the collection of current bills. D.C., 89 F.Supp. 567. The intervenors then amended their answer to attack the taking as unauthorized under the Lanham Act. The Belle Haven Realty Corporation, which had not previously answered the government's petition, did so in 1950, claiming it was the legal owner of the system and entitled to its present reproduction cost, less depreciation, as just compensation. 3 The District Court dismissed the petition on the ground that the Lanham Act, as amended, required the consent of the intervenors as well as the realty corporation, that the corporation had only conditionally consented to the taking and that the householders had not consented at all. While the Court of Appeals approved the trial court's reading of the statutory consent requirement, it declined to base its affirmance on that ground because, 'It is perfectly clear * * * that the power of condemnation given by the Lanham Act extends only to lands or interests in lands; * * * there is nothing in the act which authorizes the condemnation of a public works system such as this.' 4 Cir., 196 F.2d 657, 662, relying on Puerto Rico Ry. Light & Power Co. v. United States, 1 Cir., 131 F.2d 491. 4 The original Lanham Act of October 14, 1940, 54 Stat. 1125, was designed to provide relief for defense areas found by the President to be suffering from an existing or impending housing shortage. In such cases, the Federal Works Administrator was empowered to acquire 'improved or unimproved lands or interests in lands' for construction sites by purchase, donation, exchange, lease or condemnation. The quoted language describing the kind of property which the Administrator could condemn was carried over into Title II of the Act added in 1941 which extended the statute to public works shortages in defense areas. 'Public work,' as defined, included sewers and sewage facilities. § 201. While the general language 'improved or unimproved lands or interests in lands' included within § 202 of Title II of the Lanham Act appears to authorize the taking here, United States v. Carmack, 1946, 329 U.S. 230, 242, 243, n. 13, 67 S.Ct. 252, 257, 258, 91 L.Ed. 209, it is not necessary to depend on that section alone. In 1943, the Act was amended to provide that 'none of the funds authorized herein shall be used to acquire public works already operated by public or private agencies, except where funds are allotted for substantial additions or improvements to such public works and with the consent of the owners thereof * * *.' 57 Stat. 565, 42 U.S.C. § 1534, note, 42 U.S.C.A. § 1534, note. The 1943 amendment was in effect when the present petition was filed and its applicability here is common ground among the parties. It explicitly authorized the condemnation of such property subject to the conditions stated. 5 In this connection, we do not believe that the consent requirement bars acquisitions by condemnation. This interpretation would strip it of significance since the other means of acquiring property described in the statute necessarily rest on consensual transactions. Although condemnation is sometimes regarded as a taking without the owner's consent, 1 Lewis, Eminent Domain (3d ed.), § 1, it is not anomalous to provide for such consent which can, in effect, represent an election to have value determined by a court rather than by the parties. In addition, 'friendly' condemnation proceedings are often used to obtain clear title where price is already settled. Cf. Danforth v. United States, 1939, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240. Thus construed, all of the statutory terms are given effect. 6 Here, the consent of Belle Haven Realty Corporation was implicit in its promise to accept nominal damages. That consent cannot be characterized as conditional. Indeed, the corporation's answer, filed six years later, recognized this; rather than resisting the taking, it merely asserted a claim for more than nominal compensation. 7 Whether the intervening householders were 'owners' whose consent was required is a different matter. Their interests were regarded by both courts below as implied easements or rights of user in the sewer system. It is true that easement holders have been held to be 'owners' as that term is used in condemnation statutes. Swanson v. United States, 9 Cir., 156 F.2d 442, 445, 170 A.L.R. 258; United States v. Welch, 1910, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787; cf. United States v. General Motors Corp., 1945, 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed. 311. But the relevant question in those cases is whether the holders of such interests are entitled to compensation under the Constitution. The compensability of these interests is not in issue here; it follows that the cases on which intervenors rely are not controlling.3 In deciding who are 'owners' here, we look to the scheme of the Act itself. We think it unlikely that, in providing for the condemnation of public works, Congress at the same time intended to make preliminary negotiations so cumbersome as to virtually nullify the power granted. Yet the interpretation pressed by respondents would have that effect. It would compel the government, before taking public works, to deal with the holder of every servitude to which the property might be subject. We hold that intervenors were not 'owners' under the 1943 amendment and that the government was not required before condemning to engage in a round robin to secure from each of them a self-serving 'Barkis is willin'.' We do not pass on other issues raised by respondents, some of which if decided adversely to the government might be cured by amendment, and others we deem not ripe for adjudication because of factual questions not yet resolved. 8 Reversed. 9 Mr. Justice JACKSON took no part in the consideration or decision of this case. 10 Mr. Chief Justice VINSON, with whom Mr. Justice REED joins, dissenting. 11 Respondent-intervenors, the Belle Haven property owners, have paid for the property under condemnation. They are held to be 'owners pro tanto', of the sewerage system under Virginia law,1 and their interest in the system is characterized as constituting '* * * the only real value that it had.'2 Yet, this Court holds that they are not 'owners' for the purposes of a federal law, in which Congress reluctantly authorized acquisition of privately owned utilities on the condition that consent of the owners first be obtained. 12 One basic error underlies the decision—the assumption that Congress intended to facilitate national acquisition of going private utilities by the amended provisions of the Lanham Act.3 54 Stat. 1125, 55 Stat. 361, 57 Stat. 565, 42 U.S.C. § 1521 et seq., 42 U.S.C.A. § 1521 et seq. This error is signaled in the proposition that the 1941 Amendment to the Lanham Act, 55 Stat. 361, 42 U.S.C. § 1532, 42 U.S.C.A. § 1532, was broad enough to authorize the condemnation of utilities. The proposition is immediately glossed over with the assertion that it is unnecessary to depend on it, since the 1943 Amendment, 57 Stat. 565, 42 U.S.C. § 1534 note, 42 U.S.C.A. § 1534 note, which is admittedly applicable, authorizes the condemnation of such property in any event. But it makes a great deal of difference in interpreting the consent provision of the 1943 Amendment, depending on whether it is approached as a narrow restriction on an otherwise broad program for the acquisition of public utilities, or as a conditional grant of a power, theretofore withheld because of a hostility which could be avoided only by strict adherence to the condition imposed. 13 The purpose of the original Lanham Act of 1940, 54 Stat. 1125, 42 U.S.C. §§ 1521—1524, 42 U.S.C.A. §§ 1521—1524, was to relieve housing shortages in defense areas. The 1941 Amendment added Title II to meet public utility shortages in the defense housing areas. Eminent domain powers were authorized for the accomplishment of that purpose, but only as an integrated part of a careful statutory scheme. Section 202(a) of Title II authorized acquisition of '* * * improved or unimproved lands or interests in lands by purchase, donation, exchange, lease * * * or condemnation * * * for such public works.' And Subsection (b) authorized the Federal Works Administrator '* * * to plan, design, construct, * * * or lease public works * * * on lands or interests in lands acquired under the provisions of subsection (a) * * *.' Subsection (c) authorized the Administrator 'To make loans or grants, or both, to public and private agencies for public works and equipment therefor * * *.' 14 Simply stated, Title II authorized the Government to meet the public utilities shortage by giving aid to going utilities, by leasing going utilities, and by constructing new utilities on land or interests in land acquired for that purpose under the Act. Nowhere is there any express or implied power to acquire going utilities. 15 The administrators of the law understood the statutory scheme to be as outlined above, as evidenced by their communications to Congress in pressing for enactment of the Amendment4 and in reporting on its operation after enactment.5 Indeed, any open request for authority to acquire going utilities undoubtedly would have precipitated a debate on the sensitive issue of public versus privately-owned utilities. Immediate post-enactment events shown that had the issue been raised, the power to condemn going utilities might have been rejected out of hand. 16 In 1942, the Federal Works Agency attempted to condemn an entire electric system in Puerto Rico under the authority of Title II of the Lanham Act. The Court of Appeals for the First Circuit held that the Lanham Act did not authorize the taking of going public utilities. Puerto Rico Ry. Light & Power Co. v. United States, 1 Cir., 1942, 131 F.2d 491. When Congress learned of this attempt to condemn the Puerto Rican power system, there was an immediate reaction. In 1943, when a bill was introduced to increase the appropriation authority under Title II, Senator Taft offered an amendment providing in part that 17 'none of the funds authorized herein shall be used to acquire public works already operated by public or private agencies.' 89 Cong.Rec. 7286. 18 Senator Taft explained this amendment by reference to the Puerto Rican power case, concluding as follows: 19 '* * * certainly there was nothing in the Lanham Act which authorized any such proceeding. It was intended to provide new facilities, it was not intended to provide for taking over old facilities. I think it is perfectly clear that no such power should be included in the Act.' (Emphasis supplied.) Ibid. 20 Senator Maloney, who was in charge of the pending bill and had been in charge of the Lanham Act, concurred in Senator Taft's interpretation of the Lanham Act: 21 'Mr. President, I can see no objection to the amendments offered by the Senator from Ohio. I agree with him that Lanham Act funds, at least in my opinion—and I was one of those who helped to write the Act—were not intended to be used for such a purpose as the acquisition of a public utility in Puerto Rico. So I have no objection to the language, and as a matter of fact I share the feeling of the Senator from Ohio.' Id., at 7287. 22 The original amendment was an outright prohibition against using the Lanham Act to acquire going utilities. The comments of the legislators make it clear that the amendment was declaratory of what Congress had understood to be the correct interpretation of the Lanham Act. But Congress was not content to leave the legislation in any form subject to doubt, lest some other Court of Appeals or this Court should place a different interpretation on the Act than did the Court of Appeals for the First Circuit. 23 It was not until the following day that the excepting clause was added to the Amendment. It was introduced and explained by Senator Taft. The Public Works Agency had called to the Senator's attention a case where the Navy needed to expand a railroad by a project which would require expenditure of about double the present value of the railroad. The Agency asked that in such a case they be authorized to take over the existing utility. Senator Taft said that 'Even in such cases I do not think the authority should be given except with the consent of those who own the existing public works.' 89 Cong.Rec. 7314. Thus the 1943 Amendment came into its present form.6 24 This legislative background shows that the excepting clause in the 1943 Amendment constitutes the entire authority given to acquire going utilities. That authority should be strictly construed in keeping with the spirit of guarded caution under which it was granted. Therefore, I would construe the class of 'owners,' whose consent must be had, to be at least as broad as the normal usage of that term in the eminent domain context. 25 I can agree with the majority opinion that the consent requirement does not necessarily bar acquisition by use of condemnation proceedings, but where consent of the owner is interposed as a statutory limitation on the exercise of the right of eminent domain, it makes obvious sense to interpret the consent required as being the consent of those persons having compensable interests affected by the exercise of eminent domain. The correct rule of construction has been suggested in these terms: '* * * where the law seeks to divest all and every title to land or estate, and substitute the price therefor, * * * the word 'owner' should receive a broad and liberal construction, so as to embrace every right in and to the land * * *.' Glover v. United States, 1896, 164 U.S. 294, 299—300, 17 S.Ct. 95, 97, 41 L.Ed. 440. The proposition was recently restated in Swanson v. United States, 9 Cir., 1946, 156 F.2d 442, 445: 'The term 'owner' in statutes relating to the exercise of eminent domain includes any person having a legal or equitable interest in the property condemned.'7 26 The persuasion of common sense is to interpret the word 'owners' as the equivalent of persons having a compensable interest under the Fifth Amendment, simply because when Congress speaks of owners in the eminent domain context, its most obvious source of reference is the Fifth Amendment. That is not to say that some other meaning might not be given by express definition, or by implication, where clearly necessary to carry out some overriding policy of the statute.8 If there were in the Lanham Act what the majority opinion reads into it—a congressional policy to facilitate national acquisition of privately owned ultilities—then there might be some justification to interpret 'owners' from a narrower source of reference, such as administrative convenience. 27 The sewerage system under condemnation was built in 1925 by the Belle Haven Realty Corp. as part of the development of a residential subdivision. As lots were sold, a proportionate part of the cost of the sewer system was included in the price paid by the purchaser of each lot. The conveyance of each lot included a grant of all 'appurtenances to the same in any wise belonging.' Belle Haven Realty Corp. retained nominal title to the system and responsibility for maintaining it, but no charge was made for its use. On this state of facts, the District Court held that the property owners had property rights by way of easements appurtenant to the Belle Haven sewer system. United States v. Certain Parcels of Land in Fairfax County, D.C.1948, 89 F.Supp. 571. 28 The District Court's finding on the nature of the property interest under Virginia law is not questioned by this Court. It has been decided that such a property interest would give the owners thereof a compensable interest in a taking by power of eminent domain. United States v. Welch, 1910, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787. It should follow, from the principles of statutory construction that I have urged above, that the consent of these easement owners was required. 29 Perhaps there may be some practical limitation on the consents which Congress required. Thus, where there is a legal entity which may speak with proper authority for all who have an interest in the property, as in the case of a corporation or a trustee speaking for the shareholders or beneficiaries, consent of each individual owner might not be required. But the corporation cannot be held to represent the interests of the intervenors in the present case because it had a potentially adverse interest. The corporation stood to gain relief from its burden of maintenance if the system was taken, while the property owners stood to lose their right of free use The district judge noted in his opinion, 'It seems never to have occurred * * * to Belle Haven Realty Corporation that the individual lot owners had any interest or ownership in the sewer system.' D.C., 101 F.Supp. 172, 174. It seems absurd to say that the consent provision of the statute is satisfied by getting the consent of the corporating under the circumstances. The legal inadequacy of the corporation's consent is not changed because the corporation, despite its potentially adverse interest, made a genuine effort to do what it thought best for the property owners. Intervenors' interests are not so inconsequential in the law of eminent domain that they can be left to the beneficence of someone having a potentially adverse interest. That much is admitted by the inference that they are entitled to claim just compensation in their own right. Why are they any less entitled to give or withhold consent in their own right? 30 Even if consent of the corporation would satisfy the statute, I cannot agree that its consent was ever obtained. In 1943, when the Federal Works Agency was seeking only an easement of flowage through the lower end of the Belle Haven trunk line, the corporation consented to the taking if the Agency would take the entire system and provide in the decree that no service charges would be imposed against the Belle Haven property owners.9 The original petition of condemnation, filed in 1944, evidences no intent to proceed under terms of this consent. The petition did not plead consent. It did not seek to condemn the entire sewer system, nor did it make any provision for the protection of the property owners. Not until 1948, when the Government's lessee, Fairfax County, ran into trouble in trying to levy a uniform sewerage assessment, did the Government try to take the entire system. Even then, its amended petition did not plead consent nor make any provision for protection of the property owners. Indeed, the only apparent purpose behind its amended petition was to acquire clear title to the whole system so that its lessee could assess charges against the Belle Haven property owners.10 I can only conclude that the attempt to find a consent in the 1943 agreement came as a happy afterthought with the awakening realization that this taking could not be justified except under the 1943 Amendment.11 31 In any event, it was found as a fact that the corporation's consent '* * * was given upon a condition which the government is unwilling to accept.'12 Unless there is something in the foregoing pattern of facts which amounts to an absolute consent as a matter of law, that finding of fact cannot be dismissed with rhetorical response that the consent cannot be characterized as conditional. I would not allow the Government to justify this taking by resort to an agreement which it has refused to honor. 32 I do not think a consent can be salvaged out of the corporation's answer seeking just compensation. That answer came in 1950, only after the decision of the District Court that the property owners had a compensable interest in the system and a right to intervene. D.C., 89 F.Supp. 567. The answer pleads a belief that the conditional consent had been violated and states its primary purpose to serve the interest of the property owners. Thus, though it does ask for just compensation, the only fair construction that can be given to the answer in its entirety is that it is an alternative plea, attacking the right to take on the belief that the conditional consent had been dishonored, or alternatively seeking just compensation for its interest in the sewer if the Government's right to take should be upheld. 33 The condemnation of one small sewerage system mayseem an insignificant thing in view of the vast scope of federal eminent domain powers, and much of the impact of the present decision may be balmed over with the assurance that intervenors can claim just compensation for their losses. But there is something at stake here which transcends the immediate interests of the parties. That is the duty of the courts and administrators to keep faith with Congress in the interpretation and execution of a statute in which Congress carefully limited the powers of eminent domain because of sensitive policy considerations which were for Congress alone to evaluate. Because I think the instant condemnation clearly exceeds the scope of congressional authorization, I would affirm the judgment of the courts below. 1 'Sec. 202. Whenever the President finds that in any area or locality an acute shortage of public works or equipment for public works necessary to the health, safety, or welfare of persons engaged in national-defense activities exists or impends which would impede national-defense activities, and that such public works or equipment cannot otherwise be provided when needed, or could not be provided without the imposition of an increased excessive tax burden or an unusual or excessive increase in the debt limit of the taxing or borrowing authority in which such shortage exists, the Federal Works Administrator is authorized, with the approval of the President, in order to relieve such shortage— '(a) To acquire, * * * improved or unimproved lands or interests in lands by purchase, donation, exchange, lease * * * or condemnation * * * for such public works.' 2 '* * * none of the funds authorized herein shall be used to acquire public works already operated by public or private agencies, except where finds are allotted for substantial additions or improvements to such public works and with the consent of the owners thereof * * *.' 3 Since the district judge deemed himself unable to order the government to restore the Belle Haven system to its original condition, the householders were remitted by dismissal of the condemnation petition to a separate action for any compensable damage they suffered because of the taking. Under this ruling, the property taken would remain part of the intergrated system whether title is in the government or the realty corporation. In each case, the rights of the householders, if any, to an award remain to be determined. One effect of upholding the condemnation is to have that question tried on remand in this proceeding. 1 United States v. Certain Parcels of Land in Fairfax County, D.C.E.D.Va.1951, 101 F.Supp. 172, 175; D.C.1950, 89 F.Supp. 567; D.C.1948, 89 F.Supp. 571. 2 United States v. Certain Parcels of Land in Fairfax County, 4 Cir., 1952, 196 F.2d 657, 662. 3 As I read the opinion, this must be the assumption which compels the majority to place a limiting construction on the word 'owners,' as used in the consent proviso of the 1943 Amendment, 57 Stat. 565, lest the Government be forced 'to deal with the holder of every servitude to which the property might be subject', thereby making national acquisition of public works 'cumbersome.' 4 At the hearings the General Counsel to the Federal Works Agency testified with respect to H.R. 3213 (a preliminary draft, the language of which is substantially the same as Title II, for present purposes) as follows: 'And then authority is given to acquire land, improved or unimproved, and upon the land so acquired to construct public works, to maintain them and operate them, administer them, to sell them, to transfer them, and also to make loans and grants for all these purposes.' (Emphasis supplied.) Hearings before Committee on Public Buildings and Grounds on H.R. 3213 and H.R. 3570, 77th Cong., 1st Sess. p. 59. 5 'Authority of the Federal Works Administrator under Title II: 'Under title II the Federal Works Administrator is authorized: '(1) To construct community facilities as federal projects. '(2) To make loans or grants, or both, for the non-Federal construction of community facilities. '(3) To make contributions for the maintenance and operation of community facilities.' Memorandum of Federal Works Administrator attached to Report of Senate Committee on Public Buildings and Grounds, S.Rep.No.376, 78th Cong., 1st Sess. 3. 6 '* * * none of the funds authorized herein shall be used to acquire public works already operated by public or private agencies, except where funds are allotted for substantial additions or improvements to such public works and with the consent of the owners thereof * * *.' 57 Stat. 565. 7 Cf. Dubois v. Hepburn, 1836, 10 Pet. 1, 23, 9 L.Ed. 325, interpreting a statute which permitted the 'owner' to redeem tax delinquent land: 'Any right, which, in law or equity, amounts to an ownership in the land; any right of entry upon it, to its possession or enjoyment, or any part of it * * * makes the person the owner. * * *' 8 Thus in Glover v. United States, 1896, 164 U.S. 294, 17 S.Ct. 95, 41 L.Ed. 440, a mortgage creditor was held not to be an 'owner' for purposes of a statute making a land tax refund, since the obvious statutory scheme was to reimburse persons who had been liable to pay the tax. 9 It is interesting to note that this agreement was apparently reached in the 'spring of 1943,' which would place it prior to the enactment of the 1943 Amendment, which was on July 15, 1943. Thus, it is a little difficult to believe that the Corporation was giving or the Government seeking a consent under the statute. 10 This is the conclusion reached by the Court of Appeals. 4 Cir., 196 F.2d 657, 662—663. To some extent the conclusion depends upon questions of fact which have never been tried. But most of what there presently is in the records supports the inference that the federal power of eminent domain was exercised here to help a local county solve a problem of sewerage assessments. If this be true, I think the whole affair is completely unworthy of the high trust which should attend use of the sovereign power of eminent domain. However, that raises a question of fact going to whether or not the taking was for a public purpose. That question, as well as the factual questions of whether the President approved this specific project as required by Title II, Puerto Rico Ry. Light & Power Co. v. United States, 1 Cir., 1942, 131 F.2d 491, 495—496, and whether funds were allotted 'for substantial additions or improvements' to the Belle Haven system, as required by the 1943 Amendment, will still be left open on remand. 11 In proceedings in the District Court the Government referred to Belle Haven Realty Corp. as the 'purported owner' of the system, D.C., 101 F.Supp. 172, 175, a position quite inconsistent with its later position that the corporation was the 'owner' whose consent brings the taking within the 1943 Amendment. 12 4 Cir., 196 F.2d 657, 662. There were no formal findings of fact. But as the Court of Appeals pointed out, 'The (district) judge found it (the language quoted in text) as a fact, * * * after hearing the parties in a number of pre-trial conferences.'
34
345 U.S. 286 73 S.Ct. 676 97 L.Ed. 1013 In re ISSERMAN. No. 5, Misc. Decided April 6, 1953. Mr. Chief Justice VINSON announced the order of the Court and an opinion in which Mr. Justice REED, Mr. Justice BURTON and Mr. Justice MINTON join. 1 Abraham J. Isserman, respondent herein, was attorney for several of the eleven defendants whose convictions were affirmed by this Court in Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. At the conclusion of the trial proceedings, the trial judge sentenced all six defense attorneys, including respondent, to jail for contempt. There was one charge of conspiracy by the defense attorneys to obstruct the trial and thirty-nine charges of specific acts of contempt, six of which related to the respondent. The Court of Appeals reversed as to the conspiracy charge but affirmed as to thirty-seven of the specific acts of contempt, including all six naming the respondent, United States v. Sacher, 2 Cir., 1950, 182 F.2d 416. Upon a limited grant of certiorari, this Court also affirmed, Sacher v. United States, 1952, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717. 2 Respondent had been a member of the bar of New Jersey. Following the affirmance of the contempt sentence here, the Supreme Court of the State issued an order disbarring respondent.1 3 We then issued a rule for the respondent to show good cause why he should not be disbarred here.2 This was done in accordance with Rule 2, par. 5, of this Court, 28 U.S.C.A.: 4 'Where it is shown to the court that any member of its bar has been disbarred from practice in any State, Territory, District, or Insular Possession, or has been guilty of conduct unbecoming a member of the bar of this court, he will be forthwith suspended from practice before this court, and unless, upon notice mailed to him at the address shown in the clerk's records and to the clerk of the highest court of the State, Territory, District or Insular Possession, to which he belongs, he shows good cause to the contrary within forty days he will be disbarred.' 5 This Court (as well as the federal courts in general) does not conduct independent examinations for admission to its bar. To do so would be to duplicate needlessly the machinery established by the states whose function it has traditionally been to determine who shall stand to the bar. Rather our rules provide for eligibility in our bar of those admitted to practice for the past three years before the highest court of any state.3 The obvious premise of the rule is the confidence which this Court has in the bars maintained by the states of the Union. Respondent himself came to our bar upon presenting a certificate of his admission to the bar of the highest court of New Jersey, which now no longer finds him qualified for its bar. 6 Disbarment by a state does not automatically disbar members of our bar, but this Court will, in the absence of some grave reason to the contrary, follow the finding of the state that the character requisite for membership in the bar is lacking, Selling v. Radford, 1917, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585. But we do not follow the rule used in some state courts that disbarment in a sister state is followed as a matter of comity.4 7 The contemptuous acts have been catalogued elsewere and need not be detailed here again.5 In the main, they consisted of repetitious and insolent objections and arguments after the trial judge made rulings and then ordered a halt to further argument on the points involved. As we observed in affirming the contempt sentences such '* * * conduct has been condemned by every judge who has examined this record under a duty to review the facts.'6 Now we have additional judicial voices condemning such conduct—the unanimous opinion of the New Jersey Supreme Court, speaking through Chief Justice Vanderbilt. 8 Our rule puts the burden upon respondent to show good cause why he should not be disbarred. Let us examine the reasons advanced as meeting that burden. It is said that respondent has already been punished enough for his contempt and that to disbar him is excessive, vindictive punishment. Such an attitude misconceives the purpose of disbarment. There is no vested right in an individual to practice law. Rather there is a right in the Court to protect itself, and hence society, as an instrument of justice. That to the individual disbarred there is a loss of status is incidental to the purpose of the Court and cannot deter the Court from its duty to strike from its rolls one who has engaged in conduct inconsistent with the standard expected of officers of the Court. In so doing, we do not lay down a rule of disbarment for mere contempt;7 rather we have considered the basic nature of the actions which were contemptuous and their relationship to the functioning of the judiciary. 9 The absence of a conspiracy is given as a ground against disbarment. Nothing in our rules refers to conspiracy as a factor. To make it the turning point in this disbarment proceeding would be tantamount to our stating that recurring disobedience is not cause for disbarment unless accompanied by a conspiracy. 10 It is urged upon us that a period of suspension at most is appropriate, for the District Court for the Southern District of New York only saw fit to suspend respondent for two years. But that was before respondent was disbarred in New Jersey. It is premature to say what action may be taken by that court under its rules8 as a result of respondent's disbarment in New Jersey. 11 The Supreme Court of New Jersey, in its nine-page opinion, devoted one sentence to noting that respondent had been convicted of statutory rape in 1925 and thereupon suspended from practice for a short period.9 That one sentence is followed by this language: 'The controlling consideration in reaching a determination as to the measure of discipline, however, is respondent's scandalous and inexcusable behaviour in seeking to bring the administration of justice into disrepute in a trial that lasted nine months.'10 It may be noted, however, that the files in the office of our Clerk show that the respondent did not disclose this conviction and suspension from practice in his application for admission to our bar,11 so that we did not sanction that conduct in granting him admission. 12 The order of the Court placed the burden upon respondent to show good cause why he should not be disbarred. In our judgment, he has failed to meet this test. An order disbarring him from practice in this Court should issue. It is so ordered. 13 Respondent disbarred. 14 Mr. Justice CLARK took no part in the consideration or decision in this proceeding. 15 Mr. Justice JACKSON, whom Mr. Justice BLACK, Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS join, delivered the following opinion. 16 This proceeding to disbar Abraham J. Isserman results from his being adjudged guilty of contemptuous conduct in the trial of United States v. Dennis, 2 Cir., 183 F.2d 201, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. The trial judge found that his contemptuous acts were pursuant to a conspiracy among counsel to obstruct justice and sentenced him, with others, to jail. But the Court of Appeals, while affirming the counts charging specific acts of contempt, reversed the conspiracy count. United States v. Sacher, 2 Cir., 182 F.2d 416. This Court limited its review to questions of law and affirmed. Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717. 17 Disciplinary proceedings were instituted before the United States District Court for the Southern District of New York, in which Isserman was given a full hearing, and again the conspiracy charge was not sustained. A period of suspension from practice at the bar of the court against which the contempt was committed was considered adequate to the offense. However, the courts of New Jersey have disbarred Isserman and under our rule he must be disbarred here unless he shows good cause to the contrary.1 18 While we have expressed different views as to the merits of the contempt charges, and each adheres to his former expressions, we are agreed that there is good cause for withholding this Court's decree of disbarment. 19 Primarily because of these contempts, the Supreme Court of New Jersey disbarred Isserman. It also considered his conviction in that State of statutory rape in 1925. At the time of conviction, however, the New Jersey courts found such extenuating circumstances that only a small fine and a temporary suspension from practice were deemed to make the punishment fit the crime.2 Five years after this conviction, this Court, asking no question which would have called for disclosure of the conviction, admitted Isserman to its bar, it appearing that he was then in good standing before the courts of New Jersey. Under these circumstances, we do not think we can now attach any weight to this derelication. 20 We think this Court should not accept for itself a doctrine that conviction of contempt per se is ground for a disbarment. It formerly held, in an opinion by Mr. Chief Justice Marshall, that a lawyer should be admitted to this bar even though for contempt he had been disbarred by a federal district court action—'* * * one which the court do not mean to say was not done for sufficient cause, or that it is not one of a serious character; but this court does not consider itself authorised to punish here for contempts which may have been committed in that court.' Ex parte Tillinghast, 4 Pet. 108, 109, 7 L.Ed. 798. The remedy for courtroom contempt should be prompt and direct punishment proportioned to the offense. Isserman has been severely punished. His penalty his included what is rare in the punishment of lawyers' contempts—a substantial jail sentence. 21 We do not recall any previous instance, though not venturing to assert that there is none, where a lawyer has been disbarred by any court of the United States or of a state merely because he had been convicted of a contempt.3 But we do know of occasions when members of the bar have been found guilty of serious contempt without their standing at the bar being brought into question. It will sufficiently illustrate the point to refer to the tactics of counsel for the defense of William M. Tweed. Those eminent lawyers deliberately and in concert made an attack upon the qualifications of Presiding Judge Noah Davis, charging him with bias and prejudice. At the end of that trial, after he had pronounced sentence on Tweed, Judge Davis declared several defense counsel guilty of contempt. Not one of these lawyers, apparently, was subjected to disciplinary proceedings in consequence of that judgment. Among them were Elihu Root, later to become one of the most respected of American lawyer-statesmen, and, Willard Bartlett, destined to become Chief Judge of the New York Court of Appeals. These two were excused from any penalty, beyond a lecture on their and Willard Bartlett, destined to become by their seniors a rebuke perhaps more humiliating than a sentence.4 One of the seniors who participated in the contempt, and certainly one of its chief architects, was David Dudley Field. He later was elected president of the American Bar Association.5 22 There has been hue and cry both for and against these lawyers for Communist defendants. There are those who think the respectability of the bar requires their expulsion. There are those who lament that any punishment of their conduct will so frighten the legal profession that it will not dare to discharge its duty to clients. We make common cause with neither. In defending the accused Communists, these men were performing a legitimate function of the legal profession, which is under a duty to leave no man without a defender when he is charged with crime. In performing that duty, it has been adjudged that they went beyond bounds that are tolerable even in our adversary system. For this, Isserman has paid a heavy penalty. 23 If the purpose of disciplinary proceedings be correction of the delinquent, the courts defeat the purpose by ruining him whom they would reform. If the purpose be to deter others, disbarment is belated and superfluous, for what lawyer would not find deterrent enough in the jail sentence, the two-year suspension from the bar of the United States District Court, and the disapproval of his profession? If the disbarment rests, not on these specific proven offenses, but on atmospheric considerations of general undesirability and Communistic leanings or affiliation, these have not been charged and he has had no chance to meet them. We cannot take judicial notice of them. On the occasions when Isserman has been before this Court, or before an individual Justice, his conduct has been unexceptionable and his professional ability considerable. 24 We would have a different case here if the record stood that Isserman, with others, entered into a deliberate conspiracy or plans to obstruct justice. But that charge has been found by the Court of Appeals to lack support in the evidence, and again in the disciplinary proceeding in District Court it was not found to be proven. What remains is a finding that he was guilty of several unplanned contumacious outbursts during a long and bitter trial. 25 Perhaps consciousness of our own short patience makes us unduly considerate of the failing tempers of others of our contentious craft. But to permanently and wholly deprive one of his profession at Isserman's time of life, and after he has paid so dearly for his fault, impresses us as a severity which will serve no useful purpose for the bar, the court or the delinquent. 1 In re Isserman, 1952, 9 N.J. 269, 87 A.2d 903. 2 Journal of the Supreme Court of the United States, June 2, 1952, p. 222. 3 Rule 2, par. 1: 'It shall be requisite to the admission of attorneys or counsellors to practice in this court, that they shall have been such for three years past in the highest court of a State, Territory, District, or Insular Possession, and that their private and professional characters shall appear to be good.' 4 In re Van Bever, 1940, 55 Ariz. 368, 101 P.2d 790; In re Leverson, 1935, 195 Minn. 42, 261 N.W. 480; Copren v. State Bar, 1947, 64 Nev. 364, 183 P.2d 833, 173 A.L.R. 284; In re Brown, 1932, 60 S.D. 628, 245 N.W. 824; State Board of Law Examiners v. Brown, 1938, 53 Wyo. 42, 77 P.2d 626. 5 The contempt certificate in full is set forth in United States v. Sacher, 2 Cir., 1950, 182 F.2d 416, at page 430. 6 Sacher v. United States, 1952, 343 U.S. 1, 13, 72 S.Ct. 451, 457, 96 L.Ed. 717. 7 See Ex parte Tillinghast, 1830, 4 Pet. 108, 7 L.Ed. 798. 8 'The court shall make an order disbarring a member of the bar of this court (1) who has been convicted in any federal, state, or territorial court of an offense which is a felony in the jurisdiction of such conviction; or (2) who has been disbarred by any court of record, federal, state or territorial.' Rule 5(b), District Court for the Southern District of New York. 9 In re Isserman, 1952, 9 N.J. 269, 279, 87 A.2d 903, 907. 10 Ibid. 11 Rule 2, par. 2, and the application form for admission did not require information as to prior suspensions at the time Isserman was admitted. Such information is now required by Rule 2, par. 2. 1 Rule 2, par. 5, reads: 'Where it is shown to the court that any member of its bar has been disbarred from practice in any State, Territory, District, or Insular Possession, or has been guilty of conduct unbecoming a member of the bar of this court, he will be forthwith suspended from practice before this court, and unless, upon notice mailed to him at the address shown in the clerk's records and to the clerk of the highest court of the State, Territory, District or Insular Possession, to which he belongs, he shows good cause to the contrary within forty days he will be disbarred.' 2 In re Isserman, 140 A. 253, 6 N.J.Misc. 146. 3 In the trial of John Peter Zenger, in 1735, the Supreme Court of Judicature for the Province of New-York disbarred two of his defense counsel for 'having presumed (notwithstanding they were forewarned by the Court of their displeasure if they should do it) to sign' and file a document questioning legality of the Judges' Commissions, which was adjudged to be a contempt for which they were peremptorily excluded from further practice and their names struck from the roll of attorneys. Rutherford, John Peter Zenger, 50; 17 How.St.Tr. 683—684. 4 Jessup, Elihu Root, 80—93. 5 Rogers, American Bar Leaders, 50.
56
345 U.S. 330 73 S.Ct. 681 97 L.Ed. 1048 FORD MOTOR CO.v.HUFFMAN et al. INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENTWORKERS OF AMERICA, CI v. HUFFMAN et al. Nos. 193 and 194. Argued Dec. 18, 19, 1952. Decided April 6, 1953. Mr. William T. Gossett, Dearborn, Mich., for Ford Motor Co. Mr. Harold A. Cranefield, Detroit, Mich., for International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO. Mr. Herbert Monsky, Louisville, Ky., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 In these cases we sustain the validity of collective-bargaining agreements whereby an employer, in determining relative seniority of employment among its employees, gives them credit for pre-employment military service as well as the credit required by statute for post-employment military service.1 2 These proceedings were begun in the United States District Court for the Western District of Kentucky by respondent Huffman, acting individually and on behalf of a class of about 275 fellow employees of the Ford Motor Company, petitioner in Case No. 193 (here called Ford). His complaint is that his position, and that of each member of his class, has been lowered on the seniority roster at Ford's Louisville works, because of certain provisions in collective-bargaining agreements between Ford and the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, petitioner in Case No. 194 (here called International). He contends that those provisions have violated his rights, and those of each member of his class, under the Selective Training and Service Act of 1940, as amended.2 He contends that also that International's acceptance of those provisions exceeded its authority as a collective-bargaining representative under the National Labor Relations Act, as amended.3 He asks, accordingly, that the provisions be declared invalid insofar as they prejudice the seniority rights of members of his class, and that appropriate injunctive relief be granted against Ford and International. After answer, both sides asked for summary judgment.4 3 The District Court dismissed the action without opinion but said in its order that it was 'of the opinion that the collective bargaining agreement expresses an honest desire for the protection of the interests of all members of the union and is not a device of hostility to veterans. The Court finds that said collective bargaining agreement sets up a seniority system which the Court deems not to be arbitrary, discriminatory or in any respect unlawful.' The Court of Appeals for the Sixth Circuit reversed, one judge dissenting. 195 F.2d 170. Ford and International filed separate petitions for certiorari seeking to review the same decision of the Court of Appeals. We granted both because of the widespread use of contractual provisions comparable to those before us, and because of the general importance of the issue in relation to collective bargaining. 344 U.S. 814, 73 S.Ct. 35. 4 The pleadings state that Huffman entered the employ of Ford September 23, 1943, was inducted into military service November 18, 1944, was discharged July 1, 1946, and, within 30 days, was reemployed by Ford with seniority dating from September 23, 1943, as provided by statute.5 It does not appear whether the other members of his class are veterans but, like him, all have seniority computed from their respective dates of employment by Ford. 5 The pleadings allege further that Huffman and the members of his class all have been laid off or furloughed from their respective employments at times and for periods when they would not have been so laid off or furloughed except for the provisions complained of in the collective-bargaining agreements. Those provisions state, in substance, that after July 30, 1946, in determining the order of retention of employees, all veterans in the employ of Ford 'shall receive seniority credit for their period of service, subsequent to June 21, 1941 in the land or naval forces or Merchant Marine of the United States or its allies, upon completion of their probationary period' of six months.6 6 The effect of these provisions is that whereas Huffman's seniority, and that of the members of his class, is computed from their respective dates of employment by Ford and they have been credited with their subsequent military service, if any, yet in some instances they are now surpassed in seniority by employees who entered the employ of Ford after they did but who are credited with certain military service which they rendered before their employment by Ford.7 7 Respondent contended in the Court of Appeals that allowance of credit for pre-employment military service was invalid because it went beyond the credit prescribed by the Selective Training and Service Act of 1940. That argument was rejected unanimously. 195 F.2d 170, 173. It has not been pressed here. There is nothing in that statute which prohibits allowing such a credit if the employer and employees agree to do so. The statutory rights of returning veterans are subject to changes in the conditions of their employment which have occurred in regular course during their absence in military service, where the changes are not hostile devices discriminating against veterans. Aeronautical Indus. Dist. Lodge v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513; and see Trailmobile Co. v. Whirls, 331 U.S. 40, 67 S.Ct. 982, 91 L.Ed. 1328; Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230. See also, Oakley v. Louisville & N.R. Co., 338 U.S. 278, 70 S.Ct. 119, 94 L.Ed. 87, as to a veteran's seniority status more than one year after his reemployment. 8 On the other hand, the second objection raised by respondent was sustained by a majority of the members of the Court of Appeals. This objection was that the authority of International, as a certified bargaining representative, was limited by statute and was exceeded when International agreed to the provisions that are before us. 9 The authority of every bargaining representative under the National Labor Relations Act, as amended, is stated in broad terms: 10 'Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. * * * 11 'Sec. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: * * *.' (Emphasis supplied.) 61 Stat. 140, 143, 29 U.S.C.(Supp. V) §§ 157, 159(a), 29 U.S.C.A. §§ 157, 159(a). 12 In the absence of limiting factors, the above purposes, including 'mutual aid or protection' and 'other conditions of employment', are broad enough to cover terms of seniority. The National Labor Relations Act, as passed in 1935 and as amended in 1947, exemplifies the faith of Congress in free collective bargaining between employers and their employees when conducted by freely and fairly chosen reporesentatives of appropriate units of employees. That the authority of bargaining representatives, however, is not absolute is recognized in Steele v. Louisville & N.R. Co., 323 U.S. 192, 198—199, 65 S.Ct. 226, 230, 89 L.Ed. 173, in connection with comparable provisions of the Railway Labor Act. Their statutory obligation to represent all members of an appropriate unit requires them to make an honest effort to serve the interests of all of those members, without hostility to any. Id., 323 U.S. at page 198, 202—204, 65 S.Ct. 230, 231—232; Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 211, 65 S.Ct. 235, 236, 89 L.Ed. 187; Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283. 13 Any authority to negotiate derives its principal strength from a delegation to the negotiators of a discretion to make such concessions and accept such advantages as, in the light of all relevant considerations, they believe will best serve the interests of the parties represented. A major responsibility of negotiators is to weigh the relative advantages and disadvantages of differing proposals. A bargaining representative, under the National Labor Relations Act, as amended, often is a labor organization but it is not essential that it be such. The employees represented often are members of the labor organization which represents them at the bargaining table, but it is not essential that they be such. The bargaining representative, whoever it may be, is responsible to, and owes complete loyalty to, the interests of all whom it represents. In the instant controversy, International represented, with certain exceptions not material here, all employees at the Louisville works, including both the veterans with, and those without, prior employment by Ford, as well as the employees having no military service. Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. 14 Compromises on a temporary basis, with a view to long range advantages, are natural incidents of negotiation. Differences in wages, hours and conditions of employment reflect countless variables. Seniority rules governing promotions, transfers, layoffs and similar matters may, in the first instance, revolve around length of competent service. Variations acceptable in the discretion of bargaining representatives, however, may well include differences based upon such matters as the unit within which seniority is to be computed, the privileges to which it shall relate, the nature of the work, the time at which it is done, the fitness, ability or age of the employees, their family responsibilities, injuries received in course of service, and time or labor devoted to related public service, whether civil or military, voluntary or involuntary. See, e.g., Hartley v. Brotherhood of Clerks, 283 Mich. 201, 277 N.W. 885; and see also, Williamson & Harris, Trends in Collective Bargaining (1945), 100 103. 15 The National Labor Relations Act, as amended, gives a bargaining representative not only wide responsibility but authority to meet that responsibility. We have held that a collective-bargaining representative is within its authority when, in the general interest of those it represents, it agrees to allow union chairmen certain advantages in the retention of their employment, even to the prejudice of veterans otherwise entitled to greater seniority. Aeronautical Indus. Dist. Lodge v. Campbell, supra, 337 U.S. at pages 526—529, 69 S.Ct. 1289—1291. 16 The public policy and fairness inherent in crediting employees with time spent in military service in time of war or national emergency is so clear that Congress, in the Selective Training and Service Act of 1940, required some credit to be given for it in computing seniority both in governmental and in private employment. See note 5, supra. Congress there prescribed that employees who left their private civilian employment to enter military service should receive seniority credit for such military service, provided their prior civilian employment, however brief, was bona fide and not on a temporary basis. There is little that justifies giving such a substantial benefit to a veteran with brief prior civilian employment that does not equally justify giving it to a veteran who was inducted into military service before having a chance to enter any civilian employment, or to a veteran who never worked for the particular employer who hired him after his return from military service. The respective values of all such veterans, as employees, are substantially the same. From the point of view of public policy and industrial stability, there is much to be said, especially in time of war or emergency, for allowing credit for all military service. Any other course adopts the doubtful policy of favoring those who stay out of military service over those who enter it. 17 The above considerations took concrete form in the Veterans' Preference Act of 1944 which added the requirement that credit for military service be given by every civilian federal agency, whether the military service preceded or followed civilian employment.8 Apparently recognizing the countless variations in conditions affecting private employment, Congress, however, did not make credit for such pre-employment military service compulsory in private civilian employment. A little later, the Administrator of the Retraining and Reemployment Administration of the United States Department of Labor assembled a representative committee to recommend principles to serve as guides to private employers in their employment of veterans and others.9 Among 15 principles developed by that committee, and 'wholeheartedly' endorsed by the Secretary of Labor, in 1946, were the following: 18 '8. All veterans having reemployment rights under Federal statutes should be accorded these statutory rights as a minimum. 19 '13. Newly hired veterans who qualified for employment should be allowed seniority credit, at least for purposes of job retention, equal to time spent in the armed services plus time spent in recuperation from serviceconnected injuries or disabilities either through hospitalization or vocational training.'10 20 The provisions before us reflect such a policy.11 It is not necessary to define here the limits to which a collective-bargaining representative may go in accepting proposals to promote the long range social or economic welfare of those it represents. Nothing in the National Labor Relations Act, as amended, so limits the vision and action of a bargaining representative that it must disregard public policy and national security. Nor does anything in that Act compel a bargaining representative to limit seniority clauses solely to the relative lengths of employment of the respective employees. Aeronautical Indus. Dist. Lodge v. Campbell, supra, 337 U.S. at pages 526, 528 529, 69 S.Ct. 1289, 1290—1291, note 5. For examples of negotiated provisions protecting veterans from loss of seniority upon their return to private civilian employment, recognized by the National War Labor Board as coming within the proper scope of collective bargaining, in 1945, see, In re American Can Co., 27 War Lab.Rep. 634, 28 War Lab.Rep. 764, and In re Firestone Tire & Rubber Co., 24 War Lab.Rep. 322, 28 War Lab.Rep. 483. See also, Bureau of National Affairs, Inc., Collective Bargaining Contracts (1941), 369 et seq. 21 The provisions before us are within reasonable bounds of relevancy. They extended but slightly, during a period of war and emergency, the acceptance of credits for military service under circumstances where comparable credit already was required, by statute, in favor of all who had been regularly employed by Ford before entering military service. These provisions conform to the recommendation of responsible Government officials and round out a statutory requirement which, unless so rounded out, produces discriminations of its own. A failure to adopt these provisions might have resulted in more friction among employees represented by International than did their adoption. 22 The several briefs of amici curiae, filed here by consent of all parties, demonstrate the widespread acceptance and relevance of the type of provisions before us. 23 We hold that International, as a collective-bargaining representative, had authority to accept these provisions. Accordingly, we find no ground sufficient to establish the invalidity of the provisions before us or to sustain an injunction against either petitioner. In accord: Haynes v. United Chemical Workers, 190 Tenn. 165, 228 S.W.2d 101. 24 The judgment of the Court of Appeals which reversed that of the District Court therefore is reversed. The judgment of the District Court is affirmed and the cause is remanded to it. 25 Reversed and remanded. 1 Where the context permits, 'military service' in this opinion includes service in the land or naval forces or Merchant Marine of the United States or its allies. 2 54 Stat. 890, 56 Stat. 724, 58 Stat. 798, 60 Stat. 341, 50 U.S.C.App. § 308, 50 U.S.C.A.Appendix, § 308. 3 49 Stat. 452, 61 Stat. 140, 65 Stat. 601, 29 U.S.C. (Supp.V) §§ 157—159, 29 U.S.C.A. §§ 157—159. 4 In No. 194, International also questions the jurisdiction of the District Court. International recognizes that one issue in the case is whether it engaged in an unfair labor practice when it agreed to the allowance of credit for pre-employment military service in computations of employment seniority. It then argues that the National Labor Relations Act, as amended, 61 Stat. 146, 29 U.S.C. (Supp. V) § 160(a), 29 U.S.C.A. § 160(a), vests the initial jurisdiction over such an issue exclusively in the National Labor Relations Board. This question was not argued in the Court of Appeals nor mentioned in its opinion and, in view of our position on the merits, it is not discussed here. Our decision interprets the statutory authority of a collective-bargaining representative to have such breadth that it removes all ground for a substantial charge that International, by exceeding its authority, committed an unfair labor practice. As to a somewhat comparable question considered in connection with the Railway Labor Act, 45 U.S.C.A. § 151 et seq., see Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Steele v. Louisville & N.R. Co., 323 U.S. 192, 204—207, 65 S.Ct. 226, 232—234, 89 L.Ed. 173. 5 'Sec. 8. * * * '(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate (of satisfactory completion of his period of training and service), (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within ninety days after he is relieved from such training and service '(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so; * * *.' 54 Stat. 890, 58 Stat. 798, 50 U.S.C.App. § 308(b)(B), 50 U.S.C.A.Appendix, § 308. 6 Article VIII of a supplementary agreement between Ford and International, dated July 30, 1946, contained the following: 'Section 13—* * *. '(c) Any veteran of World War II who was not employed by any person or company at the time of his entry into the service of the land or naval forces or the Merchant Marine and who is a citizen of the United States and served with the allies and who has been honorably discharged from such training and service and who is hired by the company after he is relieved from training and service in the land or naval forces or after completion of service in the Merchant Marine shall, upon having been employed for six (6) months and not before, receive seniority credit for the period of such service subsequent to June 21, 1941, provided: '(1) Such veteran must apply for employment within ninety (90) days from the time he is relieved from such training or service in the land or naval forces or the time of his completion of such service in the Merchant Marine, and must obtain such employment within twelve (12) months from the time he is relieved from such training and service in the land or naval forces or the time of his completion of such service in the Merchant Marine. '(2) Such veteran shall not have previously exercised his right in any plant of this or any other company. '(3) A veteran so employed shall submit his service discharge papers to the company at the end of aforesaid probationary period of employment and the company shall place thereon in permanent form a statement showing that the veteran has exercised this right, such statement to be signed by representatives of the company and the Union, and a copy thereof placed in the employee's record and a copy furnished to the Union. '(d) It is further understood and agreed that, regardless of any of the foregoing, all veterans in the (employ) of the company at the time the Contract is thus amended shall receive seniority credit for their period of service, subsequent to June 21, 1941 in the land or naval forces or Merchant Marine of the United States or its allies, upon completion of their probationary period.' (Emphasis supplied.) The above provisions were continued in effect, in substantially identical form, in an agreement of August 21, 1947. An agreement of September 28, 1949, provided: 'Section 12. * * * '(c) Any employee who, prior to the effective date of this Agreement, has received the seniority credit provided for in Article VIII, Section 13(c) or (d) of and the Union dated August 21, 1947, or the Agreement between the Company the comparable provision in the Suprementary Agreement between the Company and the Union dated July 30, 1946, shall continue to receive such seniority credit.' 7 On Huffman's return to Ford in July, 1946, his employment seniority, including his military service, dated from September 23, 1943. It totaled about 33 months, including about 14 months of pre-service company employment and 19 of post-employment military service. An example of a veteran who, due to the agreements before us, outranks Huffman in employment seniority is one who entered military service July 1, 1943, without any prior employment, served honorably until discharged March 1, 1945, and, thereafter, has been employed continuously by Ford, including six months of satisfactory probationary employment. His seniority dates from July 1, 1943. By July 1, 1946, it totaled 36 months, including 20 months of pre-employment military service, and 16 of post-service company employment. However, except for the collective-bargaining agreements, Huffman would then have outranked such a veteran by about 17 months, although Huffman's military service totaled one month less, his employment by Ford two months less and his combined military service and company employment three months less than that of such a veteran. 8 'Sec. 12. In any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings: Provided, That the length of time spent in active service in the armed forces of the United States of each such employee shall be credited in computing length of total service: * * *.' 58 Stat. 390, 5 U.S.C. § 861, 5 U.S.C.A. § 861. 9 This 'Committee of Nine' consisted of representatives from the Business Advisory Council to the Secretary of Commerce, National Association of Manufacturers, U.S. Chamber of Commerce, American Federation of Labor, Congress of Industrial Organizations, Railway Labor Executives' Association, American Legion, Disabled American Veterans and Veterans of Foreign Wars. 10 Reemployment of Veterans Under Collective Bargaining, United States Department of Labor, Bureau of Labor Statistics, October, 1947, Statement of Employment Principles dated October 7, 1946, App. D, pp. 46—48; and see Bulletin of Retraining and Reemployment Administration, United States Department of Labor, October 10, 1946, p. 5; Harbison, Seniority Problems During Demobilization and Reconversion, Industrial Relations Section, Department of Economics and Social Institutions, Princeton University (1944) 12—14. 11 Collective Bargaining Provisions—Seniority, Bull. No. 908 11, United States Department of Labor, Bureau of Labor Statistics (1949), quotes many seniority clauses as examples of those then in use and including many factors other than length of employment. Among those quoted is the following: '61. Veteran Not Previously Employed Given Seniority Credit for Time Spent in Armed Forces 'Any veteran of World War II who has been discharged, other than dishonorably, from the armed forces of the United States and who immediately prior to his acceptance in the armed forces was not previously employed by (name of company) and who is employed by (name of company) within twelve (12) months after his discharge, provided it is his first place of employment after his discharge, shall take his place on the seniority list after completing the sixty (60) day trial period. His seniority shall be computed from the day of his acceptance into the armed forces. However, no veteran covered by this section shall have seniority prior to December 7, 1941.' P. 13.
12
345 U.S. 377 73 S.Ct. 759 97 L.Ed. 1086 UNITED STATESv.JONES. No. 556. Decided April 13, 1953. Walter J. Cummings, Jr., Sol. Gen., Washington, D.C., for the United states. Messrs. Patrick C. Whitaker and Thomas P. Whitaker, Tampa, Fla., for appellee. PER CURIAM. 1 Invoking the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, the Government appeals from a dismissal of a two-count information charging appellee with violations of the Civil Rights Act, 18 U.S.C. § 242, 18 U.S.C.A. § 242. 2 The District Court construed the information to charge that appellee, an officer in a Florida state prison, whipped certain prisoners entrusted to his custody 'for the purpose and with the intent of disciplining said prisoners.' The District Court held that mere disciplinary action by state prison officials is no offense under the Civil Rights Act, supra, and dismissed the information. 3 On appeal, the Government predicates its argument for reversal upon the assumption that the information charges for more than the District Court found it charged. The Government construes the information to charge that appellee wilfully extorted confessions of violations of prison rules from the prisoners and wilfully inflicted illegal summary punishment upon them, in violation of the laws of Florida and the Constitution of the United States. Thus, the Government's appeal—the theory of the prosecution—is based upon a construction of the information which differs significantly from the construction which the District Court has placed upon it. 4 The Criminal Appeals Act, supra, strictly limits the scope of our jurisdiction over this appeal. We may only entertain questions relating to the construction of the Civil Rights Act, supra, and its applicability to this information. We cannot re-examine the information and construe it de novo, for we are bound by the District Court's construction. United States v. Borden Co., 1939, 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181. 5 Under the Criminal Appeals Act, we have the power to remand this case to the Court of Appeals if we are of the 'opinion' that the appeal 'should have been taken to a court of appeals'. 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. We think this case is appropriate for the exercise of the power which Congress has entrusted to our discretion. The initial issue—and a critical issue—raised by the Government's appeal obviously involves questions relating to the correctness of the District Court's construction of the information and not to that court's interpretation of the scope of the Civil Rights Act, supra. Those questions cannot be resolves in a direct appeal to this Court, but they can be reviewed should the case be remanded to the Court of Appeals for the Fifth Circuit. Accordingly, we remand this appeal to the Court of Appeals for further proceedings in that court. It is so ordered. 6 Case remanded to Court of Appeals.
89
345 U.S. 457 73 S.Ct. 757 97 L.Ed. 1147 UNITED STATESv.CARROLL No. 442. Argued March 11 and 12, 1953. Decided April 27, 1953. Mr. Marvin E. Frankel, Washington, D.C., for appellant. Mr. Morris A. Shenker, St. Louis, Mo., for appellee. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This is an appeal under the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, from an order of the District Court dismissing an indictment. The indictment contains 101 counts. Each count alleges that appellee made payment of a sum in excess of $600 a year to a named individual—some in 1948, some in 1949, and the rest in 1950. The offense charged as to each such payment is a wilful failure to make a return on Treasury Form 1099 in violation of § 145(a) of the Internal Revenue Code, as amended, § 5(c), Current Tax Payment Act of 1943, 57 Stat. 126, 26 U.S.C. § 145(a), 26 U.S.C.A. § 145(a). 2 Section 147 of the Act, as amended by § 202(c)(3) of the Revenue Act of 1948, 62 Stat. 110, provides that any person making a payment to another of $600 or more in any calendar year 'shall render a true and accurate return to the Commissioner, under such regulations and in such form and manner and to such extent as may be prescribed by him with the approval of the Secretary'. 3 Treasury Regulations 111, § 29.147—1, as amended T.D. 5313, 1944 Cum.Bull. 308, T.D. 5687, 1949—1 Cum.Bull. 9, provides that all persons making any such payment in any calendar year (with exceptions not relevant here) shall make a 'return' on Form 1099, 'accompanied by transmittal Form 1096 showing the number of returns filed.' Form 1099 is required to be prepared and filed for each payee, showing the name and address of the payee, the kind and amount of income paid, and the name and address of the person making the payment. Form 1099 on its face is called an 'Information Return'; and its instructions say that it is to be forwarded 'with return Form 1096.' Form 1099 contains no formal declaration by the payor nor any signature by him. Those are provided in Form 1096. 4 Form 1096 is called 'Annual Information Return.' It must be signed by the payor with a statement of the number of reports on Form 1099 which are attached. It contains a declaration that 'to the best of my knowledge and belief the accompanying reports on Form 1099' constitute 'a true and complete return of payments' of the prescribed character made during the specified calendar year. 5 Section 145(a) of the Act provides that any person required by law or regulations 'to make a return * * * for the purposes of the computation, assessment, or collection of any estimated tax or tax imposed by this chapter, who willfully fails to * * * make such return' shall be guilty of a misdemeanor and on conviction be fined not more than $10,000 or imprisoned for not more than one year, or both. 6 The District Court ruled that the 'return' specified in § 145(a) was that provided in Form 1096, not the one provided in Form 1099 and that since the only offenses charged in the 101 counts were failures to file Form 1099 the indictment should be dismissed.* 7 The question is not without difficulty. But we conclude that the District Court reached the correct result. 8 The 'return' required by § 147(a) is to be made 'in such form and manner' as are prescribed in the Regulations. The Regulations provide in § 29.147—1, as we have noted, that a 'return shall be made in each case on Form 1099, accompanied by transmittal Form 1096 showing the number of returns filed.' The 'form and manner' prescribed therefore seem to consist of the verified Form 1096 together with the Forms 1099. All of them together apparently constitute the 'return' referred to in § 147(a). The various Forms 1099 seem to have the same relation to Form 1096 as schedules have to an ordinary income tax return. From 1099 supplies the details which underlie Form 1096. That conclusion is supported by the fact that Form 1096 is the only one which is signed and verified. 9 We hesitate to conclude that a failure to file an unverified schedule is given the same dignity as the failure to file the verified return. We are dealing with criminal sanctions in the complicated, technical field of the revenue law. The code and the regulations must be construed in light of the purpose to locate and check upon recipients of income and the amounts they receive. See S.Rep. No. 103, 65th Cong., 1st Sess. 20. But at the same time every citizen is entitled to fair warning of the traps which the criminal law lays. Where the 'return' prescribed is a verified Form 1096 together with all the unverified Forms 1099 it does not seem fair warning to charge a person for more than the failure to make that return. To multiply the crimes by the number of Forms 1099 required to be filed is to revise the regulatory scheme. So far as these information returns are concerned, the purpose of § 145(a) seems to us to be fulfilled when the sanction is applied only to a failure to file Form 1096. 10 Affirmed. * We postponed the question of jurisdiction to a hearing on the merits in view of appellee's contention in his statement opposing jurisdiction that the dismissal was based not only upon the 'construction of the statute' within the meaning of the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, but also, as respects the first 45 counts, on a question of venue. We do not read the oral opinion of the District Court that way. We think the District Court rested its decision as respects all 101 counts on the construction of the statute. Whether there are other objections to the indictment which might also lead to dismissal is therefore not properly here on this appeal. See United States v. Borden Co., 308 U.S. 188, 193, 60 S.Ct. 182, 84 L.Ed. 181.
01
345 U.S. 427 73 S.Ct. 739 97 L.Ed. 1125 CALMAR S.S. CORP.v.SCOTT et al. No. 303. Argued Jan. 15, 1953. Decided April 27, 1953. Rehearing Denied June 1, 1953. See 345 U.S. 971, 73 S.Ct. 1110. Mr. Edwin S. Murphy, New York City, for petitioner. Mr. Hubert H. Margolies, Washington, D.C., for United States, as amicus curiae by special leave of court. Mr. Russell T. Mount, New York City, for respondents. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 This is a suit in admiralty against British underwriters on a war-risk policy issued to cover the Calmar Corporation's S.S. Portmar for a voyage, in the winter of 1941—1942, from the United States to a port or ports in the Philippine Islands and return to an Atlantic or Pacific port in the United States. After the voyage had commenced Australia was duly substituted for the Philippine Islands as the outbound destination. The Portmar was under charter to the United States. This suit, based on damage inflicted by enemy aircraft, was tried together with a libel against the United States claiming recovery for the same damage as well as additional charter hire. See Calmar Steamship Co. v. U.S., 345 U.S. 446, 73 S.Ct. 733. The District Court held the underwriters liable for a constructive total loss of the vessel. Calmar Steamship Co. v. U.S., 103 F.Supp. 243. The Court of Appeals reversed. 2 Cir., 197 F.2d 795. We granted certiorari, 344 U.S. 853, 73 S.Ct. 92, because wide use, so the Court was advised, of the clauses of this policy makes their construction, a necessary issue here, a matter of more than individual concern. 2 Pursuant to the charter agreement between the Calmar Corporation and the United States, the Portmar left San Francisco for Manila on November 28, 1941. She carried high-octane gasoline, ammunition and other military supplies and equipment. She was some 600 miles southeast of the Hawaiian Islands on December 7, when Pearl Harbor was attacked. Her master at that time put her on a southerly course so as to avoid the combat area. On December 11, United States naval routing orders were received by radio on the Portmar. From that day until she was damaged and abandoned, a little over two months later, her every movement was in obedience to orders issued by competent United States and Australian authorities. The Portmar, which flew the American flag, was subject to these orders. 3 On December 30, the Portmar arrived at Sydney, Australia.1 Without being permitted to discharge cargo, she was dispatched up the coast to Brisbane. There her cargo was unloaded and sorted, part of it was put back on her, and she was sent almost half-way around the island to Port Darwin. She had been in Brisbane a week and had left on January 9, 1942. She was in Darwin on the 19th and lay at anchor till the 31st, waiting to dock and discharge cargo. This she then did, in part. Still carrying two thousand drums of her original load of gasoline, she left on February 4 for a relatively short trip across Joseph Bonaparte Gulf to Wyndham, where she arrived on the 8th. She returned empty to Darwin on the 12th. She then took aboard troops with equipment and armament and joined an exceedingly perilous expedition to Koepang, on the Island of Timor, some 500-odd miles northwest of Darwin. This expedition ran into heavy air attacks and turned back. On the 18th of February, the Portmar was at Darwin again, awaiting her turn to dock and discharge the personnel and equipment she had taken on. While thus at anchor on the morning of the 19th, she underwent bombing and strafing by Japanese airplanes and sustained the damage which forced her master to beach her and caused him to abandon her. 4 Article 2.17 of the charter agreement under which the Portmar sailed provided that her owners might obtain war-risk insurance, to be paid for by the United States. Before commencement of the voyage, Calmar took out the war-risk policy now in question on the hull and machinery of the Portmar, valued at $860,000. This policy insured 'only against the risks of war, strikes, riots and civil commotions.' It was assembled—that seems an appropriate word—by superimposing on the age-old Lloyd's form layer upon layer of warranties and riders. Warranties free the underwriters from obligations imposed by riders, and subsequent riders then reimpose obligations thus avoided. 5 'Touching the Adventures and Perils which we the Assurers are contented to bear and do take upon us in this Voyage,' the basic Lloyd's policy states, 'they are, of the Seas, Men-of-War * * * Enemies * * * Takings at Sea, Arrests, Restraints and Detainments of all Kings, Princes and People * * *.' The policy is then 'warranted free from * * * capture, seizure, arrest, restraint or detainment, or the consequences thereof * * * or any taking of the Vessel, by requisition or otherwise * * * also from all consequences of hostilities or warlike operations * * *.' This warranty is known as the capture and seizure warranty. It is superseded by a war-risk rider, which provides: 6 'It is agreed that this insurance covers only those risks which would be covered by the attached policy * * * in the absence of the C. & S. warranty * * * but which are excluded by that warranty. 7 'This insurance is also subject, however, to the following warranties and additional clauses:— 8 'The Adventures and Perils Clause shall be construed as including the risks of piracy, civil war, revolution, rebellion or insurrection or civil strife arising therefrom, floating and/or stationary mines and/or torpedoes whether derelict or not and/or military or naval aircraft * * * and warlike operations and the enforcement of sanctions by members of the League of Nations * * * but excluding arrest * * * under customs or quarantine regulations, and similar arrests, restraints or detainments not arising from actual or impending hostilities or sanctions.' 9 A further warranty, known as the free of British capture warranty, carves a specific exception out of the war-risk rider. It holds the underwriters 10 'free of claims arising from Capture, Seizure, Arrest, Restraint, Detainment, Requisition, Nationalization or Condemnation by or under the authority of the government of Great Britain or any of its dominions * * * or allies, or by any forces acting in cooperation with or under the control of them or any of them.' 11 But a saving clause, following immediately, provides that 12 'unless the insured Vessel is condemned this warranty shall not exclude losses otherwise covered by this policy which are caused by gunfire, torpedoes, bombs, mines or other implements of war, or by stranding, sinking, burning or collision, provided such losses would not be covered by a marine insurance policy (in the form hereto attached) warranted free of claims arising from Capture, Seizure or Detention.' Construing such conglomerate provisions requires a skill not unlike that called for in the decipherment of obscure palimpsest texts. A judicial sigh recently uttered at the seat of Lloyd's evokes a sympathetic echo. 'Freight insurance entered into on the old form of marine insurance policy with deletions or additions to adapt the form to the intended contract (has) almost invariably given rise to difficulties, and the present case (is) no exception.' Mr. Justice Sellers in Atlantic Maritime Co. v. Gibbon, Law Report, March 16, 1953, The Times, March 17, p. 11.2 One envies not merely the perceptiveness of Lord Mansfield in matters of commercial law but his genial means of informing himself. We cannot resort to the elastic procedure by which Mansfield sought enlightenment at dinners with 'knowing and considerable merchants,'3 nor have we any Elder Brethren of Trinity House to help us. To be sure we have in this case the benefit of the views of the most experienced of admiralty judges. Considering the scanty contact this Court has these days with maritime law, we pay especial deference to the weighty judgment before us. But since it is before us, we cannot abdicate the duty to decide and must in the end exercise our own judgment however unsure it be. 13 Assuming that the policy was in force when the Portmar was attacked, there is no doubt whatever that the underwriters would be liable for the damage under the basic adventures and perils clause taken alone. Cf. Standard Oil Co. of New Jersey v. United States, 267 U.S. 76, 45 S.Ct. 211, 69 L.Ed. 519. The capture and seizure warranty, on the other hand, would, of course, hold the underwriters free. We understand the war-risk rider to provide as follows: Risks which are covered by the adventures and perils clause, but which are excluded by the capture and seizure warranty, and only such risks, remain covered. These risks include, in the language of the adventures and perils clause, 'Restraints and Detainments of all Kings, Princes and People,' or, in that of the capture and seizure warranty, 'restraint or detainment, or the consequences thereof * * * or any taking of the Vessel, by requisition or otherwise.'4 The free of British capture warranty would, in turn, again very likely avoid liability in this case. But the war-risk rider makes the loss of the Portmar one which is 'otherwise covered by this policy' within the terms of the saving clause in the British capture warranty. The loss is 'otherwise covered by this policy' because it is insured against elsewhere within it, that is, in the war-risk rider. Since the Portmar had not been 'condemned' when she was damaged by 'implements of war,' the saving clause thus reinstates, in this case, coverage avoided by the free of British capture warranty, still assuming, of course, that the policy was in force at the time of the loss.5 14 The underwriters contend that the phrase 'losses otherwise covered by this policy' in the saving clause refers to losses which the policy would cover if they were not the consequences of an Allied restraint or detainment. A loss such as that of the Portmar, they say, is not otherwise covered because it followed a deviation which, had it not occurred pursuant to naval orders, would not be excusable and would have terminated coverage. The phrase in its context precludes such sophistical reading. It is plainly intended, together with the proviso at the end restricting the clause to losses which the capture and seizure warranty would exclude and which the war-risk rider therefore takes in, to make certain and doubly certain that the coverage of the policy as a whole is in no event enlarged.6 Moreover, if the sense were given to the 'otherwise covered' phrase which the underwriters press upon us, the saving clause as a whole would be left quite devoid of any meaning. It would then uselessly preserve coverage only for losses which are securely covered anyway, despite the presence of the free of British capture warranty. 15 The underwriters resort to a second argument concerning the saving clause. They contend, not quite consistently with the earlier argument, that the clause was meant to save losses which occur while a vessel is under certain Allied restraints, limited in number, but not under others. The underwriters, upon the trial, offered to prove as much by an expert witness. No more need be said than that to vary the terms of the saving clause so as to make it mean what the expert in the District Court said it meant7 which on its face it cannot mean—would be to reform the contract, and that the requirements of the equitable doctrine of reformation are not met in this case. 16 We thus read the provisions of this policy as insuring against a loss such as that of the Portmar, though it be the consequence of seizure by a British ally. So, reasoning substantially along these lines, did the District Court, and it proceeded to hold the underwriters liable. The Court of Appeals assumed that the 'labyrinth of verbiage, within which lurks whatever contract was made, is to be understood to agree that, although the ship might at the time be under the 'restraint of princes,' the policy should cover her loss * * *.' But it held that 'the policy was no longer in force when the loss occurred, the insured voyage having before then come to an end and the policy with it.' 197 F.2d at page 796. The voyage had ended, the court said, because the dominion exercised over the Portmar by Allied authorities was complete, and was very probably intended to continue indefinitely. The policy, in turn, was no longer in force because it was written for a voyage and could not outlast it, any more than a voyage charter would. Precisely as frustration of the voyage would end the latter, so it releases an underwriter from further liability. 17 The facts from which the Court of Appeals deduced that the detainment of the Portmar was to be prolonged indefinitely are these. When the Portmar reached Sydney, the Japanese had a working naval command of the Pacific, and Australia was threatened with invasion. The need for shipping was dire, as the use made of the Portmar herself shows. Indeed, after she was damaged and beached, military authorities salved her and patched her up hastily. The United States eventually requisitioned title to her, and she was used till finally destroyed. An American colonel in charge of transportation in Australia when the Portmar was there testified at the trial to the serious shortage of shipping, which, he said, continued throughout the year 1942. But as late as January 19, when the Portmar was in Darwin, the owners learned from an agent of the United States Maritime Commission that she would load chrome ore late in February and could be expected in Philadelphia in April. Australia was not, of course, the only place where there was a dearth of shipping at the time, and there is nothing in the record to show that a colonel on the spot had the last word as to the future use of an oceangoing vessel; if there were, it would strain credulity. Two further points are to be noted. First, when the Army salved and used the Portmar after she was damaged, she was no longer in any condition to make ocean voyages, and could not readily be returned to such a condition. And it was at that time that the United States formally requisitioned her—at that time for the first time. Second, there was testimony indicating that other vessels detained in Australia early in 1942 were held through the year. But there is no testimony that any vessel similar to the Portmar were so held. The witness—the Army colonel in charge—spoke of '(s)ome 21 small Dutch vessels.' 18 In point of time, the Court of Appeals fixed frustration of the voyage as having taken place at Brisbane, during the period of January 5 to 9, 1942. And so the underwriters contend here. Part of the Portmar's cargo, which was unloaded at Brisbane for sorting, was, as we have seen, put back on her there, and she was sent with it to Darwin. It can hardly be maintained that the vessel's trips along the Australian coast after Brisbane, while she was still carrying parts of her original cargo, or the trip from Sydney to Brisbane, constituted a departure from her voyage, whether or not excusable. For the voyage specified in the Portmar's insurance policy was not to a single port as the outbound destination, but to a 'port or ports' and back, 'via port or ports in any order.'8 That being so, we cannot find that the voyage ended at Brisbane on the theory that it was there that dominion over the Portmar by requisitioning authorities became complete and hence there that the intention to cause her to abandon her voyage was formed or manifested. It is not maintained, nor could it be, that an explicit decision, objectively provable, not to allow the Portmar to continue on her voyage was ever reached by the authorities, and there is no showing whatever that her owners or charterer had any intention of discontinuing the voyage. On the evidence, this is not a case in which a change of voyage, releasing the underwriters, can be shown before the vessel is overtly employed in a manner inconsistent with the purpose or route of the original voyage. Compare Thellusson v. Ferguson, 1 Doug. 360, with Tasker v. Cunninghame, 1 Bligh 87, and Woolridge v. Boydell, 1 Doug. 16; see 1 Arnould, Marine Insurance (13th ed., by Lord Chorley 1950) §§ 381, 385. Consequently, dominion or no, the Portmar was covered by her insurance at Brisbane and later, till she started on the Koepang expedition, or just before, as she is conceded to have been covered before Brisbane, while under equally complete dominion of naval authorities. Cf. Rickards v. Forrestal Land, Timber and Railways Co. (1942) A.C. 50, 80. 19 The Koepang expedition was undoubtedly a venture inconsistent with the voyage specified in the Portmar's insurance.9 We are prepared to assume, though of course we do not decide, that the Koepang trip would have terminated, on grounds of abandonment of voyage, the coverage of a policy warranted free of war risks or of one warranted completely free of British capture, and that, under such a policy, had the Portmar subsequently sustained damage not attributable to war causes, cf., e.g., Standard Oil Co. of New Jersey v. United States, 340 U.S. 54, 71 S.Ct. 135, 95 L.Ed. 68, there would have been no recovery. We assume that in those circumstances the Court of Appeals could have inferred as it did, on the basis of the Koepang venture and of the military situation, that the Portmar was to be retained indefinitely under requisition, and that her voyage was therefore over. But the point of this policy is that here the underwriters, by virtue of the saving clause, did insure against risks of British requisition. They insured, in other words, against consequences of a forced interruption of the voyage, which must necessarily throw into doubt the chances of completing the voyage as planned. Circumstances which may make out a change of voyage and cause termination of coverage under a policy warranted free of risks arising from seizure need not do so under one of insurance against such risks. In one as in the other, if they are both written for a voyage, there is an implied warranty that no different voyage will be undertaken. But it is a warranty which must be construed in light of the express provisions of the policy, and which may mean different things in different policies. 20 If, in the circumstances of this case, an owner who bought insurance against damage resulting from Allied requisition and one who bought a policy excluding such losses entirely stand on no different footing in respect of a sovereign's intention to retain their vessels indefinitely, they hardly stand on a different footing in any substantial respect. And the one received very little, if anything, more than the other. For inferences of permanence, as strong as those in this case, will surely be permissible from most every requisition by a friendly sovereign for military uses. It is hard to imagine a military situation serious enough to lead a commander in the field to take it upon himself to requisition a friendly vessel, which is not sufficiently serious to make that requisition of presumptively indefinite, or at least uncertain, duration in his mind. Thus the difference between a policy containing a free of British capture warranty with a saving clause, such as we have in this case, and one without a like saving clause narrows down, under the holding of the Court of Appeals, to this: On the first policy, underwriters may be held liable for losses attributable to a small class of Allied restraints which are by their nature limited in duration, the most common example being detainment for inspection. On the second policy, underwriters may not be so held. This, of course is exactly the result which would flow from the construction placed on the saving clause by the underwriters' expert witness,10 a construction contrary to that assumed by the Court of Appeals to be the correct one. As to other restraints, the Court of Appeals would normally allow no recourse against the underwriters to either owner, the one who bought the first type of policy or the one who bought the second; to one on one theory, to the other on another; to one because he expressly agreed himself to bear all risks arising from Allied restraints, to the other despite the fact that he paid for insurance against such risks and could have had every expectation, on the face of the policy written for him, that he had effectively obtained it. Thus a significant part of the coverage of war risk insurance, which is purchased separately, over and above ordinary insurance, and at great expense, would be rendered nugatory. 21 The provisions of the policy contain no time limitations on the detainments against which they insure. The District Court consequently, although recognizing that '(i)ndeed, that is broad coverage!', felt constrained to hold that coverage would extend throughout the period of a detainment, no matter what its nature, and past the time when the voyage insured for had definitely been frustrated. The court thus, in effect, read the implied warranty concerning changes of voyage as referring, in this policy, to voluntary changes of voyage only. Rickards v. Forrestal Land, Timber and Railways Co., (1942) A.C. 50, may support the position of the District Court.11 It is persuasive authority, since '(t)here are special reasons for keeping in harmony with the marine insurance laws of England, the great field of this business * * *.' Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., 263 U.S. 487, 493, 44 S.Ct. 175, 176, 68 L.Ed. 402. But we are not required to accept the broad ground on which the District Court rested. It is not contended here that anything done by any officer or official on the scene or elsewhere before the Portmar was damaged made it explicit—and now objectively provable—that she would be detained indefinitely or even for such a period of time as might be thought to postpone her return voyage unreasonably. Such an explicit decision might at least more likely have come to the prompt attention of the owners, whereas in its absence, as here, no owner, whether on the scene or not, could so much as make an informed guess concerning the fate of the voyage. We do not decide that case, but we do hold that if a policy such as this is to provide any appreciable and safely predictable protection over and above that of a policy which does not insure at all against consequences of Allied detainments, coverage cannot be said to have ended before an unambiguous, objectively provable decision has been made by the requisitioning sovereign to cause abandonment of the voyage. 22 A number of subsidiary questions in the case were all decided in favor of the owners by the District Court. The most important is raised by the contention that the vessel was never a constructive total loss and was not validly abandoned as such. The Court of Appeals, in view of its disposition of the case, found it unnecessary to consider any of these questions. They are not related to the major issue in the case, and so we remit them to the Court of Appeals. 23 The judgment of the Court of Appeals must be vacated and the cause remanded to that court for proceedings not inconsistent with this opinion. 24 It is so ordered. 25 Judgment of Court of Appeals vacated and cause remanded with directions. 26 Mr. Justice MINTON dissents for the reasons stated in the opinion of Circuit Judge Learned Hand, 197 F.2d 795. 27 Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE concurs, dissenting. 28 The CHIEF JUSTICE and I, having voted to grant certiorari in this case, would now dismiss it as having been improvidently granted. No principle of law, requiring restatement or clarification,1 is involved. We have here only a question whether under the special circumstances of this case there was a frustration of the venture by the seizure of the vessel at Brisbane or at some later point. The District Court found there was not. The Court of Appeals, speaking unanimously through Judge Learned Hand, found that there was. The decision turns on the weighing of many factors and conditions against a background of admiralty practice and custom with which we are nowhere near as familiar as the experienced admiralty judges below. It seems to me quite improvident for us to reweigh the fragments of the evidence which Learned Hand, Augustus N. Hand, and Harrie B. Chase, JJ., weighed, see 197 F.2d 795, 799—801, and to revise the decision which their experienced minds reached on the totality of the facts of the case. Yet if we were to do so we could not escape the conclusion that the voyage had been frustrated at least by the time the Portmar reached Darwin on February 12, 1942. For as the opinion of the Court concedes, by that time the vessel had been emptied of her original cargo and was being loaded with troops, equipment, and armament for 'an exceedingly perilous expedition to Koepang, on the Island of Timor, some 500-odd miles northwest of Darwin.' As the Court says: 29 'This expedition ran into heavy air attacks and turned back. On the 18th of February, the Portmar was at Darwin again, awaiting her turn to dock and discharge the personnel and equipment she had taken on. While thus at anchor on the morning of the 19th, she underwent bombing and strafing by Japanese airplanes and sustained the damage which forced her master to beach her and caused him to abandon her.' 30 Certainly by the 12th of February the purposes of the venture, commercially speaking, had ended. The ship was now engaged in an enterprise far beyond the voyage contemplated by the parties. 1 Not until January 19 did word reach Calmar that the Portmar had been diverted to Australia from the original course she had set for Manila. This was not due to any negligence on the part of the master, who throughout the adventure made sturdy and insistent efforts to keep in touch with his owners. It was simply the result of security regulations imposed by the proper authorities, and of difficulties of communication. When Calmar received this news, it chose to act under a clause in the policy providing: 'Held covered in the event of any breach of warranty as to date of sailing or deviation or change of voyage, provided prompt notice be given these Insurers when such facts are known to the Assured and/or their managers and an additional premium paid if required.' Calmar communicated the change in destination to the underwriters. The latter agreed to hold the Portmar covered by letter dated February 6, 1942. This agreement was retroactive. No additional premium was required. 2 'The truth is that (the) law of marine insurance is nothing more than a collection of rules for the construction of the ancient form of policy and such additions as are from time to time annexed to it. The ancient form dates back at least to the sixteenth century, and it is a document which the late Sir Frederick Pollock characterized, with justifiable asperity, as 'clumsy, imperfect, and obscure' * * *. 'Innumerable clauses have from time to time been devised to supplement the ancient form. Unhappily tradition seems to have caused them also in very many cases to be 'clumsy, imperfect, and obscure' * * *. Oddly enough, the tradition has even infected the Legislature with a microbe of inaccuracy. In 1746 an Act * * * made re-insurance illegal, except in the case where 'the assurer shall be insolvent, become bankrupt, or die.' It is inconceivable that an insolvent underwriter should desire to re-insure, and obviously the evil aimed at was double insurance by the assured. 'Re-insurance,' however, had then its present well known meaning, and the draftsman of the Act used the wrong word in order to maintain the tradition of obscurity.' MacKinnon, L.J., in Forrestal Land, Timber and Railways Co., v. Rickards, (1941) 1 K.B. 225, 246—247. 3 Lewis v. Rucker, 2 Burr. 1167, 1168. 'Lord Mansfield converted an occasional into a regular institution, and trained a corps of jurors as a permanent liaison between law and commerce. He won their confidence by social, as by professional, condescension, 'not only conversing freely with them in court, but inviting them to dine with him." Fifoot, Lord Mansfield 105, quoting from 2 Campbell, Lives of Chief Justices 407. 4 The war-risk rider is not without its slight ambiguity. The word 'only' in its first paragraph could be read to indicate that that paragraph simply sets the outer limit of the coverage but is not itself an insuring clause, that is, does not reinstate any of the coverage of the adventures and perils clause. We do not understand the underwriters to urge such a reading, and we do not think they could reasonably do so. Following its first paragraph, the rider insures against some risks not specifically mentioned in the adventures and perils clause, and also excludes from coverage certain defainments not connected with 'actual or impending hostilities.' If the first paragraph of the rider is not to be read as an insuring clause, why is the subsequent insuring clause referred to in the rider as an 'additional' one? What sense is there in singling out as risks to be insured against exclusively those risks which might be thought not to be clearly covered in the adventures and perils clause? Why should war-risk insurance, purchased at a time of impending war and covering 'only against the risks of war, strikes, riots and civil commotions,' insure comprehensively against the perils of civil war but not against those of war itself? Finally, why should insurance be written in language construing a nonoperative clause? 5 The final proviso in the saving clause—that the losses must be such as would not be covered by a policy in which the capture and seizure warranty is in full force—is automatically complied with once it is established that the loss in this case is 'otherwise covered by this policy.' For it is 'otherwise covered' by virtue of the war-risk rider, which in turn covers only losses excluded by the capture and seizure warranty. These riders and warranties, which, when assembled, constitute the policy, are often independently developed. That may explain overlapping provisions such as these. Moreover, it is not hard to understand why extreme caution is exercised in making certain that only war risks are insured against by war-risk riders and saving clauses. For war-risk insurance is often—as it was in this case—written separately from ordinary marine insurance, and it is important to exclude losses, caused by collision or stranding, for example, which are attributable to the ordinary hazards of navigation. 6 See n. 5, supra. 7 The witness, William D. Winters, chairman of the board of a leading marine insurance company in the United States, manager, for a number of years, of the American Marine Insurance Syndicate, and a former president of the American Institute of Marine Underwriters, testified as follows: 'During the war * * * Great Britain and her Allies took vessels into control ports in order to see whether they had contraband * * * on them. The ship at that point * * * was in the control of the Government authorities, or it was captured. * * * (G)oing into those control ports, (was) a very dangerous operation * * *. 'The cases had been settled, that the underwriters were not liable. The underwriters didn't think that was doing their part of their job. So they constructed * * * this clause to go on hull policies * * * to show that they were willing, notwithstanding the fact that this vessel had been captured, nevertheless, if in entering a control port she was blown up by a mine or if she went ashore * * * they would not refuse the claim because of that happening. It was to save the assured from something over which he had no control in a very limited situation, where the British government had not captured it for the purpose of, at that point, condemning the boat because we say that if condemned, we were not liable, but for the purpose of finding out whether the boat, perhaps, should be condemned, and the underwriters felt that under those circumstances it was their duty to go ahead with their assured and take care of this unusual situation. But it was always within the framework of that voyage, of that particular incident of the voyage. The words are general, I agree * * *.' The District Court heard this testimony subject to a later ruling on its admissibility, based on a finding that the language of the free of British capture warranty was or was not ambiguous. The court found that the language was not, and ruled that Mr. Winters' testimony was inadmissible. 8 To be sure, going from Brisbane to Darwin instead of discharging all cargo at Sydney or Brisbane meant exposing the vessel to greater risk. The same may be said of returning to an Atlantic rather than a Pacific port in the United States. The policy permitted either. The underwriters could have avoided all these potential additional risks by writing a policy for a voyage from one specific port to another and back. They did not. Nor can the underwriters complain that in going from Brisbane to Darwin the Portmar hugged the coast, thus increasing her sailing time and, in one sense, again, the risk. For she did it for her safety, just as she justifiably turned south on the day Pearl Harbor was attacked. 9 It was a deviation, but it is worth noting that, in view precisely of the fact that the Portmar was under the complete and inescapable dominion of competent naval authorities, it was excusable, and hence not such a deviation as might, without more, release the underwriters from all further obligations. This would probably be true even had the Portmar's policy been warranted free of all war risks, in which case the Koepang trip would have been a deviation occasioned by a peril not insured against. Cf. Robinson v. Marine Ins. Co., 2 Johns., N.Y., 89, and Scott v. Thompson, 1 Bos. & Pul. (N.R.) 181; see 1 Arnould, supra, § 435. But cf. Aktiebolaget Malareprovinsernas Bank v. American Merchant Marine Ins. Co., 241 N.Y. 197, 149 N.E. 830. Not unless the Koepang trip marked a permanent change of voyage, an abandonment of the original one, could it be said that the coverage of even such a policy had undoubtedly come to an end. 10 See n. 7, supra. 11 In the Rickards case, the House of Lords dealt with voyage policies on cargo, insuring against detainments. No free of British capture warranty was involved. Upon declaration of war with Germany in September 1939, the masters of the three vessels in question put into neutral ports and then, under orders of the German Government, of which they were subjects, proceeded to run the blockade and try to make German ports. This constituted abandonment of the voyages insured for. One of the vessels made a German port. The other two were intercepted and, again under orders from the German Government, scuttled by their masters to avoid capture. The House of Lords held that the abandonment of the voyages, occasioned by restraint of princes—i.e., the orders of the German Government, which were binding on the masters—did not relieve the underwriters of liability. The underwriters here attempt to distinguish the Rickards case on the ground that it dealt with cargo rather than hull insurance, and on other grounds. We do not pass on the validity of these grounds of distinction. But the Rickards case does definitely dispose of an argument based on the following clause, which appeared in the Rickards policies and which is present in the policy before us now: 'Warranted free of any claim based upon loss of or frustration of the insured voyage or venture caused by arrests, restraints or detainments, of kings, princes, or peoples.' It was urged in Rickards that this warranty means that whenever damage or loss resulting from a restraint frustrates the voyage, the underwriters are relieved of any liability arising from that restraint. It is hence unnecessary to decide whether or not frustration of the voyage before the damage occurred ended coverage. The simple answer to this argument was that the claim made was not 'based upon loss of or frustration of the insured voyage;' it was based upon loss of the cargo, as in this case it is based upon loss of the vessel. Of course, whenever as a consequence of a restraint a vessel or cargo is lost, or even severely damaged, the voyage is frustrated. If the frustration warranty applies in such cases, therefore, its effect is to hold the underwriters free of liability for any total loss, indeed, for most losses, resulting from detainment. We are authoritatively told that the clause was not intended to achieve such a sweeping result. See the observations of Viscount Maugham. (1942) A.C., at 72—73, of Lord Porter, id., at 106, and of MacKinnon, L.J., (1941) 1 K.B., at 252. 1 There is, for example, no usurpation of the fact finding function such as we commonly find in cases arising under the Federal Employers' Liability Act. See Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497.
78
345 U.S. 446 73 S.Ct. 733 97 L.Ed. 1140 CALMAR S.S. CORP.v.UNITED STATES. No. 262. Argued Jan. 15, 1953. Decided April 27, 1953. Mr. Edwin S. Murphy, New York City, for petitioner. Mr. Hubert H. Margolies, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 By the Suits in Admiralty Act1 the United States consents, under defined conditions, to the filing against it in the District Courts of libels in personam. Libels which concern vessels 'operated by or for the United States' and 'employed as merchant vessels' are authorized. The question in this case is whether a privately owned steamship, undoubtedly 'operated * * * for the United States', was 'employed as a merchant vessel' within the meaning of the Act while carrying military supplies and equipment for hire. Since a considerable volume of litigation appears to be affected, we granted certiorari, 344 U.S. 853, 73 S.Ct. 92, on a petition which the Government did not oppose. 2 The vessel here, the S. S. Portmar, and the voyage are those involved in No. 303, Calmar Steamship Corporation v. Scott, 345 U.S. 427, 73 S.Ct. 739, which was tried together with this suit. Calmar's claim against the United States is for additional charter hire and for the loss of its vessel. The latter claim is based on two theories. The United States, it is said, is liable as an insurer to the extent that war-risk insurance purchased pursuant to the provisions of Article 2.17 of the charter2 does not cover the loss. The United States is also liable, Calmer contends, because the loss of the Portmar was a result of compliance by its master with orders issued under authority of the United States, and the latter agreed in Article 2.11 of the charter3 to hold the owners harmless from all consequences of such compliance. 3 Other relevant provisions of the charter are as follows: The 'good steel steamship Portmar * * * with hull, machinery and equipment in a thoroughly efficient state' was chartered 'for trading for one round voyage.' Calmar agreed to deliver the Portmar to the United States 'ready to receive cargo with clean-swept holds and * * * tight, staunch, strong and in every way fitted for service' and manned by 'a Master and a full complement of officers and crew for a vessel of her tonnage.' Calmar was to exercise due diligence 'to maintain (the vessel) in such state during the currency of this Charter.' The Portmar was to be employed, the charter further provided, 'in carrying lawful merchandise, including petroleum or its products in proper containers, between safe ports or places, in lawful trades within the trading limits of this Charter, as the Charterer or its agents shall direct.' Hire was to be payable, 'in the case of a constructive total loss, to the time of the casualty resulting in such constructive total loss.' Otherwise hire was due for periods during which the vessel was prevented from working by damage resulting from warlike acts or caused by the fault of the United States. The wages of the Master, officers and crew were to be paid by Calmar. Drydocking, cleaning and painting expenses were likewise to be borne by Calmar. 'The Master (although appointed by the Owner) (was to) be under the orders and directions of the Charterer as regards employment, agency and prosecution of the voyages; and the Charterer (was to) load, stow, trim and discharge the cargo at its expense under the supervision of the Master, who (was) to sign bills of lading for cargo as presented * * * The Master, officers and crew of the Vessel, in supervising loading, stowing, trimming, tallying and discharging, (were to) be deemed the agents of the Charterer, except in so far as such supervision pertain(ed) to the safety of the Vessel.' Calmar agreed to investigate complaints of the United States against the master, officers and crew and make necessary changes in appointments. Finally, the charter specifically provided that '(n)othing herein stated is to be construed as a demise of the Vessel to the Charterer.' 4 The District Court found that the Portmar. 5 'was privately owned and operated for the profit of the owner, in charge of a master and crew, selected and employed by the owner and responsible to it alone. That the cargo was public stores and munitions did not render 'public' the character of the vessel. She was owned neither absolutely nor pro hac vice by the United States. Public service did not alter the merchant character of the vessel * * *.' 103 F.Supp. 243, 263. 6 Consequently the District Court assumed jurisdiction under the Suits in Admiralty Act. It awarded Calmar a decree against the United States for $238.50 due, in addition to the charter hire paid by the Government, as reimbursement for expenses incurred prior to February 19, 1942, when the Portmar was damaged and abandoned.4 But the court held against Calmar on the merits of the latter's claim for charter hire for the period following the date. It held also that the United States was not on any theory liable for the loss of the vessel. Id., 103 F.Supp. at page 269. 7 The Court of Appeals reversed. While, it said, the Portmar could, indeed, under its charter, have been employed as a 'merchant vessel' in foreign commerce, the cargo she in fact carried indicated that she was not so employed. For her load consisted entirely of 'war materiel.' She carried military supplies and equipment, ammunition, and high-octane gasoline for use in war planes. A ship 'while so employed,' that is, while carrying such cargo, the court held, is not 'employed as a merchant vessel'. This was said to have been 'abundantly established' by The Western Maid, 257 U.S. 419, 42 S.Ct. 159, 66 L.Ed. 299, and by Bradey v. United States, 2 Cir., 151 F.2d 742, United States v. City of New York, D.C., 8 F.2d 270, and The Norman Bridge, D.C., 290 F. 575, and to have been 'at least recognized' in United States Grain Corporation v. Phillips, 261 U.S. 106, 43 S.Ct. 283, 67 L.Ed. 552. Calmar S.S. Corp. v. Scott, 2 Cir., 197 F.2d 795, 801—802. 8 In reaching its conclusion, the Court of Appeals adopted the Government's position below. In this Court, the Government changed its tune. Mildly suggesting that the view it pressed on the Court of Appeals 'has some support,' the Government urges now 'that the view that jurisdiction existed under the Suits in Admiralty Act is better grounded.' Thecases relied on by the Court of Appeals, the Government now argues, dealt with a significantly different problem than arises under the Suits in Admiralty Act and do not support the conclusion that the nature of the cargo is a necessary criterion for determining whether a privately owned vessel is 'employed as a merchant vessel' within the terms of that Act. The language of the Act does not impose this criterion. The phrase, 'employed as a merchant vessel', the Government now contends, is more appropriately read to refer simply to privately owned vessels operated for the United States for hire. Such a reading is not inconsistent with the legislative history, and, unlike that adopted by the Court of Appeals, tends to regard the Suits in Admiralty Act and its sister statute, the Public Vessels Act, 43 Stat. 1112, 46 U.S.C. § 781, 46 U.S.C.A. § 781, which permits suits 'for damages caused by a public vessel of the United States,'5 as manifestations of a single larger purpose, jointly forming a rational system free of random omissions and exceptions. Moreover, the Government points out, a test under which the arrangements effectuated by a charter-party are the controlling facts lends itself, unlike the cargo test, to simple and expeditious application, reasonably predictable in result. We agree with the Government's position here. 9 The Western Maid, supra, dealt with attempts to bring in the District Courts 'proceedings in rem for collisions that occurred while the vessels libelled were owned, absolutely or pro hac vice, by the United States and employed in the public service.' 257 U.S. at page 429, 42 S.Ct. at page 160. The Western Maid itself was Government property. The Liberty and the Carolinian, the other two vessels involved, were, at the time of the collisions, operated by the United States under bareboat charters. The Carolinian was an army transport manned by an army crew. The Liberty was commissioned and employed as a naval dispatch boat, manned, of course, by a navy crew. The Western Maid served as a transport. She carried foodstuffs for European relief, which, if not distributed in what had been enemy territory, were to be sold by the appropriate government official. But while, as we have noted, all three vessels were in government hands at the time of the collisions on which the libels were based, at the time of suit the Carolinian and the Liberty, though not the Western Maid, were privately owned. And so the principal question in the case, '(t)he only question really open to debate', Id., 257 U.S. at page 432, 42 S.Ct. at page 160, to which Mr. Justice Holmes, for the Court, addressed himself, was whether an enforceable liability could have been created when those two vessels passed into private ownership, although no such liability arose when the collisions occurred. The Western Maid, it was claimed, although publicly owned, was employed 'solely' as a merchant vessel, and hence as to it the collision at the time is occurred gave rise to a liability enforceable against the United States by virtue of the Shipping Act of 1916 as construed, a liability enforceable in rem and subjecting the vessel to seizure.6 It was this contention, on these facts, under this Act so construed, that Mr. Justice Holmes disposed of in passing by stating 'the obvious truth, that (the Western Maid) was engaged in a public service that was one of the constituents of our activity in the war and its sequel and that had no more to do with ordinary merchandizing than if she had carried a regiment of troops.' Id., 257 U.S. at page 432, 42 S.Ct. at page 160. 10 Of the other cases relied on by the Court of Appeals, The Norman Bridge, supra, like The Western Maid, involved an attempted seizure under the Shipping Act of 1916. The vessel was owned by the United States pro hac vice. United States v. City of New York, supra, arose under the Suits in Admiralty Act, but the vessel in question was owned by the United States and engaged in public business. She was in no sense operated for hire. The vessel in Bradey v. United States, supra, was also owned by the United States and in no sense operated for hire. United States Grain Corporation v. Phillips, supra, did not concern the Suits in Admiralty or Public Vessels or Shipping Acts. It was a suit by a naval officer under an ancient statute for a commission on gold carried by the destroyer he commanded. The citation by the Court in Phillips of the Western Maid was apt, but it fails to render the Phillips case an apt citation here. 11 The United States today would be subject to suit on the facts of The Western Maid under the Public Vessels Act. But a vessel operated for, or owned by, the United States cannot now, by virtue of § 1 of the Suits in Admiralty Act, be seized, whether or not she was 'employed as a merchant vessel'. It is for that reason that construction of the phrase, 'employed as a merchant vessel', presented a materially different problem under the Shipping Act of 1916 than it does under the Suits in Admiralty Act. Nor is the problem the same when a vessel owned, absolutely or pro hac vice, by the United States is involved as when one privately owned and operated is in question. In the former case the consequence of holding that a vessel was not 'employed as a merchant vessel' is, in the great number of instances, that the libel is dismissed under the Suits in Admiralty Act only to be heard under the Public Vessels Act in the same admiralty court. When as here the vessel is privately owned and operated, however, to hold that she was not employed as a merchant vessel is to relegate the libelant, on a contract claim substantial enough not to be cognizable on the law side under the Tucker Act, 28 U.S.C. (Supp.III) § 1346, 28 U.S.C.A. § 1346, to the Court of Claims.7 Yet the District Courts are in our judicial system, the accustomed forum in matters of admiralty; everything else being equal, no efforts should be made to divert this type of litigation to judges less experienced in admiralty. The Suits in Admiralty Act and the Public Vessels Act are not to be regarded as discreet enactments treating related situations in isolation. Hence there is no reason why a claim arising in connection with a vessel bareboat chartered by the United States and carrying war materiel should be heard by a District Court, while a like claim relating to a vessel chartered as was the Portmar and carrying the same type of cargo, should require an action to be filed in the Court of Claims.8 Nor is there any reason why a collision involving the one vessel should result in an admiralty suit under the Public Vessels Act, while on the same facts, recovery in the case of the other vessel should have to be sought on the law side.9 We have no authoritative indication that Congress wished such results, and it is quite another thing for us, in the absence of guidance from Congress, to assume that it did. 12 We hold that the Portmar, a privately owned vessel operated for hire for the United States, was 'employed as a merchant vessel' within the meaning of the Suits in Admiralty Act, although engaged on a war mission. We do not consider the merits of Calmar's claims against the United States, which the Court of Appeals did not, in view of its disposition of the libel, pass on. 13 The judgment of the Court of Appeals must be vacated and the cause remanded to that court for proceedings not inconsistent with this opinion. 14 It is so ordered. 15 Judgment of Court of Appeals vacated and cause remanded with directions. 1 Section 1 of the Act reads as follows: 'No vessel owned by the United States or by any corporation in which the United States or its representatives shall own the entire outstanding capital stock or in the possession of the United States or of such corporation or operated by or for the United States or such corporation, and no cargo owned or possessed by the United States or by such corporation, shall, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions: Provided, That this chapter shall not apply to the Panama Railroad Company.' 41 Stat. 525, 46 U.S.C. § 741, 46 U.S.C.A. § 741. Section 2 provides: 'In cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States or against any corporation mentioned in section 1 of this title, as the case may be, provided that such vessel is employed as a merchant vessel or is a tugboat operated by such corporation. Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found. * * *' 41 Stat. 525, 46 U.S.C. § 742, 46 U.S.C.A. § 742. 2 'Article 2.17. The Owner may provide, and the Charterer shall pay for, or, if the Charterer shall so elect and give notice of such election to the owner at or prior to the date of delivery of the Vessel * * * the Charterer shall provide * * * insurance on the Vessel, which shall be made payable to the Owner * * * under full form of * * * war risk policies * * *. 'The Vessel shall not be required to sail on any voyage until the insurance contemplated by this Article has been placed by the Owner or provided or assumed by the Charterer, as the case may be, provided, however, that written or telegraphic notice of assumption by the Charterer shall be sufficient.' 3 'Article 2.11. Subject always to the direction of the Charterer, the Master shall prosecute his voyages with the utmost dispatch * * *. 'The Charterer shall indemnify and hold harmless the Owner, the Master and the Vessel from all consequences and liabilities whatsoever arising from compliance with any orders or directions of the Charterer or its agents, given pursuant to this Article or any other Article of this Charter.' 4 The Government's appeal to the Court of Appeals from the decree of the District Court was restricted to the jurisdictional issue, and the Government has not intimated that the award of $238.50 to Calmar was in error on the merits. 5 Section 1 of the Act provides: 'A libel in personam in admiralty may be brought against the United States * * * for damages caused by a public vessel of the United States, and for compensation for towage and salvage services, including contract salvage, rendered to a public vessel of the United States: Provided, That the cause of action arose after the 6th day of April, 1920.' 6 Section 9 of the Shipping Act of 1916, 39 Stat. 728, 730, as amended, 40 Stat. 900, 41 Stat. 994, 49 Stat. 1987, 2016, 52 Stat. 964, 46 U.S.C. § 808, 46 U.S.C.A. § 808, provides in part: 'Every vessel purchased, chartered, or leased from the (United States Maritime C)ommission shall, unless otherwise authorized by the commission, be operated only under such registry or enrollment and license. Such vessels while employed solely as merchant vessels shall be subject to all laws, regulations, and liabilities governing merchant vessels, whether the United States be interested therein as owner, in whole or in part, or hold any mortgage, lien, or other interest therein.' The Lake Monroe, 250 U.S. 246, 39 S.Ct. 460, 63 L.Ed. 962, permitted seizure, under the provision just quoted, 'of a steam vessel * * * owned and operated by the government of the United States,' 250 U.S. at page 248, 39 S.Ct. at page 461. We have said that the Suits in Admiralty Act 'was passed to avoid the embarrassment to which the Government found itself subjected by the Act of September 7, 1916 (c. 451) (39 Stat. 728), by the ninth section of which vessels in which the United States had an interest and which were employed as merchant vessels were made liable as such to arrest or seizure for enforcement of maritime liens. The Lake Monroe, 250 U.S. 246, 39 S.Ct. 460, 63 L.Ed. 962.' Blamberg Bros. v. United States, 260 U.S. 452, 458, 43 S.Ct. 179, 180, 67 L.Ed. 346. Congress, in passing the Suits in Admiralty Act, was not unmindful of the considerations of fairness which prompted passage of the Shipping Act of 1916, and later of the Public Vessels Act. Congress compensated for the prohibition against seizures in § 1 of the Suits in Admiralty Act with the waiver of immunity in § 2. Section 1 states: 'No vessel owned * * * shall, in view of the provision herein made for a libel in personam, be subject to arrest * * *.' See supra, note 1. Surely the considerations of fairness which have weighed with Congress in all its actions in this field indicate that, for want of valid reasons to the contrary, the prohibition of § 1 and the waiver of § 2 and of the Public Vessels Act should be more or less coextensive. We do not in any way imply that this attitude of fairness can decide concrete cases, or that Congress meant it to. But it points a direction. 7 28 U.S.C. (Supp. III) § 1491, 28 U.S.C.A. § 1491. The litigant cannot hedge by filing a suit in the Court of Claims simultaneously with one under the Suits in Admiralty Act, as he might well want to do because of the uncertainties inherent in the cargo test applied by the Court of Appeals. (The owner, as was true in this case, may not know the nature of the cargo. The manifest here was secret. The vessel may carry mixed cargo, or it may, between voyages, be without cargo.) 28 U.S.C. (Supp. III) § 1500, 28 U.S.C.A. § 1500, provides that the 'Court of Claims shall not have jurisdiction of any claim * * * in respect to which the plaintiff or his assignee has pending in any other court any suit * * * against the United States * * *.' Time limitations differ under the Suits in Admiralty Act and in the Court of Claims. The limitation is two years under the former, 41 Stat. 526, 46 U.S.C. § 745, 46 U.S.C.A. § 745, and six years in the latter, 28 U.S.C. (Supp. III) § 2501, 28 U.S.C.A. § 2501. The starting points for accrual of interest vary as well. Compare 41 Stat. 526, 46 U.S.C. § 745, 46 U.S.C.A. § 745, with 28 U.S.C. (Supp. III) § 2516, 28 U.S.C.A. § 2516; see De La Rama S.S. Co. v. United States, 344 U.S. 386, 390, 73 S.Ct. 381, 383. 8 It is not to be assumed that all claims sounding in contract can form the basis of a suit under the Public Vessels Act. The Act expressly authorizes towage and salvage claims. We intimate no opinion as to other claims, and do not suggest that all or any of the causes of action in this very suit would or would not qualify under the Public Vessels Act. There are cases in which jurisdiction over contract claims other than towage or salvage has been assumed. Thomason v. United States, 9 Cir., 184 F.2d 105; United States v. Loyola, 9 Cir., 161 F.2d 126. But cf. Eastern S. S. Lines v. United States, 1 Cir., 187 F.2d 956. All that matters for our purpose is that there is a class of cases, no matter how narrow, which, if the cargo test of jurisdiction is applied, will be heard by the District Courts in admiralty when a vessel owned by the United States is involved, and in the Court of Claims when the vessel was chartered as was the Portmar. It is not our task, of course, to torture the Suits in Admiralty and Public Vessels Acts into an all-inclusive grant of jurisdiction to the District Courts. But equivocal language should be construed so as to secure the most harmonious results. 9 Suit would lie in most instances under the Tort Claims Act, 60 Stat. 842, 28 U.S.C.A. §§ 1346, 2671 et seq.
78
345 U.S. 379 73 S.Ct. 749 97 L.Ed. 1094 POPE et al.v.ATLANTIC COAST LINE R. CO. No. 322. Argued Jan. 16, 1953. Decided April 27, 1953. Opinion Conformed to June 9, 1953. See 76 S.E.2d 399. Mr. Richard M. Maxwell, Atlanta, Ga., for petitioner. Messrs. Allan C. Garden, Fitzgerald, Ga., Charles Cook Howell, Wilmington, N.C., for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 Invoking the Federal Employers' Liability Act,1 petitioner sued his employer, an interstate railroad company, for injuries sustained during the course of his employment, allegedly through respondent's negligence. The injury occurred in Ben Hill County, Georgia, which was the place of petitioner's employment as well as the place of his residence. But petitioner filed his complaint in the Circuit Court of Jefferson County, Alabama; jurisdiction and venue were grounded on § 6 of the Act.2 2 Respondent then initiated a suit in equity in the Superior Court of Ben Hill County and asked that petitioner be restrained from prosecuting his action in Alabama. Respondent's petition to the Ben Hill County Court contained allegations that petitioner had deliberately sought to 'harass' his employer by subjecting it to the burden and expense of defending the claim in a distant forum, far from the scene of the accident and the residences of the witnesses. 3 The trial court sustained a general demurrer to this petition. The Georgia Supreme Court reversed—holding that Georgia law provided Georgia courts with the power to enjoin Georgia residents from bringing vexatious suits in foreign jurisdictions. Petitioner's claim that § 6 of the Federal Employers' Liability Act prohibited such an injunction in this case was overruled. 209 Ga. 187, 71 S.E.2d 243. We granted certiorari, 344 U.S. 863, 73 S.Ct. 107, for the decision had interpreted an important federal statute, and the interpretation was asserted to be in conflict with decisions of this Court in Miles v. Illinois Central R. Co., 1942, 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, and Baltimore & O.R. Co. v. Kepner, 1941, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28. 4 In our grant of certiorari, we also directed counsel to brief and argue the question of whether the judgment of the Georgia Supreme Court was 'final.' The statute which vests us with jurisdiction to review the decisions of state courts provides that the judgment must come from the 'highest court of a State in which a decision could be had,' and it must be 'final.' 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. The case at bar clearly met the first requirement, but we were in doubt as to whether it satisfied the second. 5 Congress has limited our power to review judgments from state courts lest the Court's jurisdiction be exercised in piecemeal proceedings to render advisory opinions. Were our reviewing power not limited to 'final' judgments, litigants would be free to come here and seek a decision on federal questions which, after later proceedings, might subsequently prove to be unnecessary and irrelevant to a complete disposition of the litigation.3 Ordinarily, then, the overruling of a demurrer, like the issuance of a temporary injunction,4 is not a 'final' judgment. 6 Yet we are not bound to determine the presence or absence of finality from a mere examination of the 'face of the judgment.'5 We have not interpreted § 1257 so as to preclude review of federal questions which are in fact ripe for adjudication when tested against the policy of § 1257.6 7 The finality problem arises in this case because the judgment of the Georgia Supreme Court did not, on its face, end the litigation. Both parties agree that Georgia procedure would permit petitioner to return to the Superior Court of Ben Hill County and interpose some other defense to respondent's suit for an injunction. But petitioner has no other defense to interpose. He has been both explicit and free with his concession that his case rests upon his federal claim and nothing more. If the court below decided that claim correctly, then nothing remains to be done but the mechanical entry of judgment by the trial court. Thus, as the case comes to us, the federal question is the controlling question; 'there is nothing more to be decided.'7 Under these particular circumstances, we have jurisdiction over the cause, Richfield Oil Corp. v. State Board of Equalization, 1946, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80, and we reach the merits of petitioner's contention that the Georgia Supreme Court has failed to give proper effect to the venue provisions of the Federal Employers' Liability Act. 8 Section 6 of that Act establishes petitioner's right to sue in Alabama. It provides that the employee may bring his suit wherever the carrier 'shall be doing business', and admittedly respondent does business in Jefferson County, Alabama. Congress has deliberately chosen to give petitioner a transitory cause of action; and we have held before, in a case indistinguishable from this one, that § 6 displaces the traditional 'power of a state court to enjoin its citizens, on the ground of oppressiveness * * * from suing * * * in the * * * courts of another state * * *.' Miles v. Illinois Central R. Co., supra, 315 U.S. at page 699, 62 S.Ct. at page 828. Respondent admits that the Miles case dealt with precisely the issue before us, but respondent tells us that Miles is now no longer the law because Congress overruled it, by implication, with the passage of § 1404(a) of the Judicial Code in 1948.8 Section 1404(a) provides: 9 'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.' 10 We have heretofore held that § 1404(a) makes the doctrine of forum non conveniens applicable to Federal Employers' Liability Act cases brought in federal courts and provides for the transfer of such actions to a more convenience forum. Ex parte Collett, 1949, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207. Respondent would have us extend that decision, to hold that s 1404(a) also provides for the power asserted by the Georgia court in this case. We do not agree; we do not think the language of the statute suggests any such implied grant of broad power to the state courts. 11 Section 1404(a), by its very terms, speaks to federal courts; it addresses itself only to that federal forum in which a lawsuit has been initiated; its function is to vest such a federal forum with the power to transfer a transitory cause of action to a more convenient federal court. It does not speak to state courts, and it says nothing concerning the power of some court other than the forum where a lawsuit is initiated to enjoin the litigant from further prosecuting a transitory cause of action in some other jurisdiction. Nor does § 1404(a) contemplate the collateral attack on venue now urged by respondent; it contains no suggestion that the venue question may be raised and settled by the initiation of a second lawsuit in a court in a foreign jurisdiction; its limited purpose is to authorize, under certain circumstances, the transfer of a civil action from one federal forum to another federal forum in which the action 'might have been brought.' 12 Although the statutory language of § 1404(a) contains no authorization for the power asserted in this case, respondent directs our attention to remarks in the Reviser's Note to that provision of the Code. The Reviser's Notes were before Congress when it considered enactment of the various provisions of the 1948 Judicial Code and Congress relied upon them to explain the significance and scope of each section.9 13 Basing its argument upon the text of the Reviser's Note to § 1404(a), respondent argues that it must have been the intent of Congress, if not its expressed purpose, that § 1404(a) be construed as respondent would construe it. 14 The Reviser's Note to § 1404(a) recites that this Court's decision in Baltimore & Ohio R. Co. v. Kepner, supra, furnished 'an example of the need' for enactment of § 1404(a). In the Kepner case, we held that a state court was not free to exercise its equity jurisdiction to enjoin a resident of the state from prosecuting a Federal Employers' Liability Act suit in a distant federal court. We reasoned that Congress had purposely given the employee a right to establish venue in the federal court where he had sued, and, what Congress had so expressly given, the courts should not take away. 15 The reference to the Kepner case in the Reviser's Note in nowise conflicts with what we think is the plain meaning of the language of § 1404(a) itself. The Kepner case was simply cited as an apt example of an inequitable situation which could be cured by providing the federal courts with the power to transfer an action on grounds of forum non conveniens. The full text of the Reviser's Note10 makes it clear that it was the power of the federal court to transfer, and not the power of the state court to enjoin, which was the remedy envisioned for any injustice wronght by § 6 in the Kepner case. 16 Thus, with the exception of the transfer powers conferred upon the federal courts by § 1404(a), Congress deliberately chose to leave this Court's decision in the Kepner case intact. Indeed, we have said as much before: 17 'Section 6 of the Liability Act defines the proper forum; § 1404(a) of the Code deals with the right to transfer an action properly brought. The two sections deal with two separate and distinct problems. Section 1404(a) does not limit or otherwise modify any right granted in § 6 of the Liability Act or elsewhere to bring suit in a particular district. * * *' Ex parte Collett, supra, 337 U.S. at page 60, 69 S.Ct. at page 947. 18 Congress might have gone further; it might have vested state courts with the power asserted here. In fact, the same Congress which enacted § 1404(a) refused to enact a bill which would have amended § 6 of the Federal Employers' Liability Act by limiting the employee's choice of venue to the place of his injury or to the place of his residence. 19 This proposed amendment—the Jennings Bill11—focused Congress' attention on the decisions of this Court in both the Miles and the Kepner cases. The broad question—involving many policy considerations—of whether venue should be more narrowly restricted, was reopened; cogent arguments—both pro and con—were restated. Proponents of the amendment asserted that, as a result of the Miles and Kepner decisions, injured employees were left free to abuse their venue rights under § 6 and 'harass' their employers in distant forums without restriction. They insisted that these abuses be curtailed.12 These arguments prevailed in the House which passed the Jennings Bill,13 but the proposed amendment died in the Senate Judiciary Committee, and § 6 of the Federal Employers' Liability Act was left just as this Court had construed it.14 20 Since the narrow question in this case is simply whether the Miles case is still controlling; since we find no legislation which has devitalized it in any way, and since we find affirmative evidence that Congress chose to let it stand, the judgment below must be reversed. 21 Reversed. 22 Mr. Justice BLACK agrees that the Georgia Supreme Court's judgment was 'final' and concurs in reversing that judgment for the reasons given in this Court's opinion. 23 Mr. Justice REED, concurring. I am of the opinion that the Georgia judgment is not final. Compare Clark v. Williard, 292 U.S. 112, 54 S.Ct. 615, 78 L.Ed. 1160. As this view does not prevail, I join in the rest of the opinion and the judgment of the Court. 24 Mr. Justice FRANKFURTER, dissenting. 25 Pope brought an action under the Federal Employers' Liability Act against the Atlantic Coast Line Railroad, a Virginia corporation, in the Circuit Court of Jefferson County, Alabama. The action derived from an injury sustained by Pope while employed in the railroad's shops at Fitzgerald, Georgia. Fitzgerald is a town in Ben Hill County, of which Pope is, and for many years has been, a resident. Before the Alabama action came to trial, the railroad filed this suit in the Superior Court of Ben Hill County to enjoin Pope from proceeding with his action. In addition to averring the facts just recited, the railroad made allegations relating to the availability of witnesses for both parties and other factors relevant to a determination of the fairness of pursuing the litigation in Alabama. A general demurrer to this attempt to enjoin Pope from seeking to enforce his claim in Alabama was sustained by the Superior Court. The Supreme Court of Georgia, acting under the equitable doctrine of Georgia law which permits restraining a person within the State's jurisdiction 'from doing an inequitable thing', reversed. 209 Ga. 187, 71 S.E.2d 243, 245. 'The inequitable thing' which the court deemed it proper to restrain here was the accomplishment of 'the employee's purpose * * * to obtain an inequitable and unconscionable advantage over the employer' by bringing his action in Alabama. 209 Ga. at page 196, 71 S.E.2d at page 249. 26 Had Pope's action against the railroad in Alabama not been based on the Federal Employers' Liability Act, or had it been a negligence action by a passenger, a Georgia court could, no doubt, under the circumstances alleged in this suit, have enjoined Pope or the passenger from proceeding. Do the decisions in Baltimore & O.R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, and Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, in light of their basis and of the congressional response to them in § 1404(a) of Title 28 of the United States Code, as revised in 1948, restrict the exercise of such general equity powers by Georgia? 27 I accept the Kepner and Miles decisions in the sense that I would not overrule them had Congress left them undisturbed. But Congress has cut the ground from under them. 28 The Court found in those two cases that Congress, by § 6 of the Federal Employers' Liability Act, had given plaintiffs unrestrainable freedom in the choice of a forum among the courts State and federal—which were authorized to entertain actions under the Act. Following the decisions in Kepner and Miles, Congress enacted § 1404(a), permitting the transfer of 'any civil action' from one federal district court to another. The rationale of Kepner and Miles foreclosed, so we had indicated, the possibility of such a transfer in Federal Employers' Liability cases. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 505, 67 S.Ct. 839, 841, 91 L.Ed. 1055. In Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207, we held that § 1404(a) had removed the barrier of the Kepner and Miles decisions and made the doctrine of forum non conveniens applicable to cases arising in the federal courts under the Federal Employers' Liability Act as well as to the generality of cases. Congress, we said, naturally enough, had not repealed § 6, which Kepner and Miles construed, but had removed the 'judicial gloss' represented by the Court's opinions in those two cases. 337 U.S. at page 61, 69 S.Ct. at page 947. 29 The Court now reaffirms this 'gloss' by treating it as an iron restriction not to be touched beyond the literal scope of its congressional rejection. In the Collett opinion the Court examined in detail the legislative materials pertaining to § 1404(a). It gave no intimation that Congress did any less than to remove the entire gloss of Kepner and Miles, thereby freeing us from the compulsions these two cases found in § 6. Congress plainly indicated that the compulsions were the Court's artifact, not the purpose of Congress. The Collett case rests to no small extent on the illumination cast on § 1404(a) by the Reviser's Notes in their explicit reference to Kepner as 'an example of the need of * * * a provision' 'permitting transfer to a more convenient forum.' H.R. Rep. No. 308, 80th Cong., 1st Sess., App. 132. Kepner was of course not a case of transfer from one federal forum to another. It seems strange to derive from the Reviser's reference an intention to remedy a situation not presented by the facts of the Kepner case, and yet to leave untouched a result very much like that of Kepner, which, indeed, as was found in Miles, was a necessary consequence of Kepner. 30 Such treatment of legislation seems to me the opposite of obedience to a statutory command. It is beside the point to urge that § 1404(a) speaks only of forum non conveniens in the federal courts and not of State court injunctions against out-of-State suits. If § 1404(a) is to be given a strictly literal scope, what is to be made of the Reviser's citation of the Kepner case, which is an inapt reference on the score of literalness, but quite apt if we consider the 'need' that Congress was meeting? 31 Legislation was read in this hostile spirit in the mid-Victorian days when it was regarded, in the main, as wilful and arbitrary interference with the harmony of the common law and with its rational unfolding by judges. This is an attitude that treats words as ends and not as vehicles to convey meaning. One had supposed that this niggardly view of the function of legislation had long since become outmoded. Statutes, even as decisions, are not to be deemed self-enclosed instances; they are to be regarded as starting points of reasoning, as means for securing coherence and for effectuating purpose. See Landis, Statutes and the Sources of Law, Harvard Legal Essays 213—246. 32 Section 1404(a) expresses a policy with respect to the enforcement of the Federal Employers' Liability Act; a policy, as the Reviser's Notes were astute to indicate, contrary to that represented by Kepner, and its offspring, Miles.1 It is more than difficult to assume that Congress aimed at the result which this Court reached in the Collett case, and at the same time desired the result of Miles and of Kepner to continue to be law. Not to reject such an assumption is to attribute to Congress a disregard of the desirability of uniformity in the administration of the Federal Employers' Liability Act; more than that, it is to attribute to Congress a wish to create what may fairly be called, as we shall see, capricious and whimsical results. 33 The problem of avoiding abuse of the judicial process is not one that arises only in actions under the Federal Employers' Liability Act in the federal courts. Indeed, most of the actions under that Act are brought in the State courts. There is no rhyme or reason in assuming that Congress was eager to shut off abuses in the federal courts but forbade their prevention by State courts.2 Congress dealt specifically with the abuses in the federal courts since, in Title 28, it was addressing itself to federal courts. But the central fact is that Congress was formulating a policy. To disregard the natural implications of a statute and to imprison our reading of it in the shell of the mere words is to commit the cardinal sin in statutory construction, blind literalness. 34 The doctrine enunciated by Kepner and Miles at least made for uniformity in the operation of § 6, in that those cases treated the grant of authority to State and federal courts to entertain Federal Employers' Liability actions as the grant of an unqualified right to plaintiffs, indefeasible regardless of the interests of justice affected in its exercise.3 Now, under § 1404(a), federal courts may freely apply, and do apply, the doctrine of forum non conveniens to Federal Employers' Liability cases. Ex parte Collett, supra. So may State courts. Southern R. Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3. Alabama is one of a minority of the States which has ruled that it will not recognize the doctrine of forum non conveniens. See Barrett, The Doctrine of Forum non Conveniens, 35 Calif.L.Rev. 380, at 388, n. 40. Only if he Brings his action in a court of one of these States can a plaintiff be sure, under today's decision, that no matter how unjustifiable his choice, the forum in which the action is brought will be the forum in which it is tried. The sole effect of our adherence to Kepner-Miles now is the creation of a haven in which the choice of a harassing forum, an activity which Congress has condemned in § 1404(a) and which therefore we no longer ought to regard as legitimate, may be carried on by virtue of our 'judicial gloss,' although it would not be tolerated in other courts in the United States, including those over which we have supervising authority. 35 Is it reasonable to suggest that Congress contemplated this situation? Is it fair to infer that Congress removed the 'judicial gloss' only to the extent that the strictest reading of its words indicates, no matter how mutilated this left the policy which Congress, as the Reviser's Notes show, clearly avowed? 36 If the suit now before us had been brought in a federal court outside Georgia, or in any one of a number of other State courts, it would in all probability have been tried in Georgia, since under the doctrine of forum non conveniens the criteria which determined the exercise by Georgia of its equity powers would have been equally decisive. This result, that is, trial in Georgia on defendant's motion in the circumstances here present, does not run counter to the policy of the Federal Employers' Liability Act; we decreed its equivalent in Collett. Nor is it that the device employed by Georgia to prevent trial in Alabama is objectionable, for it is a familiar remedy of equity employed in the interests of justice. We have sanctioned its use in other appropriate instances, see Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538, and should not deny its use to Georgia in effectuating an end whose desirability is no longer open to question. 37 By nothing that I have said do I mean to imply that every application by a State court of the doctrine of forum non conveniens in an action under the Federal Employers' Liability Act, or every cognate injunction, is necessarily proper, and that none may run afoul of that Act. By no technical or local procedural device can a State defeat the effective enjoyment of a federal right. See American Railway Express Co. v. Levee, 263 U.S. 19, 44 S.Ct. 11, 68 L.Ed. 140; Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143. But on the admitted facts now before us there can be no doubt that the choice of Alabama as a forum was purely vexatious. On this record there is not the least shred of relevant connection between this litigation and Alabama. 1 45 U.S.C. § 51, 45 U.S.C.A. § 51. 2 45 U.S.C. § 56, 45 U.S.C.A. § 56. 3 See Radio Station WOW v. Johnson, 1945, 326 U.S. 120, 123 124, 65 S.Ct. 1475, 1477—1478, 89 L.Ed. 2092; Gospel Army v. City of Los Angeles, 1947, 331 U.S. 543, 67 S.Ct. 1428, 91 L.Ed. 1662. Cf. Herb v. Pitcairn, 1945, 324 U.S. 117, 125—126, 65 S.Ct. 459, 462—463, 89 L.Ed. 789. 4 Cf. Montgomery Building & Construction Trades Council v. Ledbetter Erection Co., 1952, 344 U.S. 178, 73 S.Ct. 196. 5 See Gospel Army v. City of Los Angeles, supra, 331 U.S., at page 546, 67 S.Ct. at page 1430. 6 See Radio Station WOW v. Johnson, supra. 7 Clark v. Williard, 1934, 292 U.S. 112, 118, 54 S.Ct. 615, 618, 78 L.Ed. 1160. 8 28 U.S.C. § 1404(a), 28 U.S.C.A. § 1404(a). 9 Ex parte Collett, supra, 337 U.S., at pages 65—70, 69 S.Ct. at pages 949—952. 10 The pertinent part of the Reviser's Note reads: 'Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, 1941, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, which was prosecuted under the Federal Employer's Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so.' 11 H.R. 1639, 80th Cong., 1st Sess. 12 See H.R.Rep.No.613, 80th Cong., 1st Sess. (1947); Hearings before Subcommittee No. 4 of the House Committee on the Judiciary on H.R. 1639, 80th Cong., 1st Sess. (1947); Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 1567 and H.R. 1639, 80th Cong., 2d Sess. (1948). The Jennings Bill was debated extensively on the floor of the House. See 93 Cong.Rec. 9178—9193. 13 93 Cong.Rec. 9194. 14 See Ex parte Collett, supra, 337 U.S., at pages 62—65, 69 S.Ct. at pages 948—950. 1 No suggestion of a policy inconsistent with that expressed by § 1404(a), as illumined by the Reviser's Note concerning it, can be derived from the failure of Congress to enact the Jennings Bill, H.R. 1639, 80th Cong., 1st Sess. That bill proposed to amend 'the Fed- eral Employers' Liability Act by removing from section 6 (45 U.S.C. 56 (45 U.S.C.A. § 56)) the provision permitting actions to be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action.' The bill proposed as well to amend 'the Judicial Code by adding a new paragraph to section 51 (28 U.S.C. 112) to provide the venue in any action brought against interstate common carriers by railroad for damages resulting from wrongful death or personal injuries.' H.R.Rep.No.613, 80th Cong., 1st Sess., at p. 2. In both actions under the Federal Employers' Liability Act and the other specified actions against railroads, the Jennings Bill would have permitted suit only in the district or county in which the plaintiff resided or the accident occurred. No doubt the abuses which are curable by discretionary dismissals under the doctrine of forum non conveniens or, as in this case, by means of an injunction, could be cured also in the manner of the Jennings Bill. But the difference between the two methods of attack is quite plain. The Jennings Bill represented a meat-ax approach and was opposed on precisely that ground by the minority in the House Committee on the Judiciary. The minority pointed out that the evil of 'trafficking in, and solicitation of, lawsuits' originated with our Kepner and Miles decisions. The minority's aim was to have lawsuits 'moved around for the convenience of witnesses and for other purposes in accordance with the provisions of the State laws' rather than be governed by the inflexible venue provisions of the Jennings Bill. Id., at Part 2, pp. 3—4. If a congressional policy can be derived from rejection of the Jennings Bill, it is a policy which coincides with that expressed in the Reviser's Note to § 1404(a), the policy, that is, which the Court disregards. 2 To suggest that Congress, if it saw fit, could 'vest' in State courts the power which this Court now denies them is, of course, to misconceive our problem. The issue is not what Congress might grant to State judiciaries but whether it has deprived them of a power which inheres in them. 3 To be sure, Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747, was not overruled, and a State court was presumably free to try to dismiss an action under the Federal Employers' Liability Act on the ground that it was brought in a forum non conveniens. This, however, was not a very likely occurrence in view of the language of the Kepner and Miles opinions, and so the plaintiff's choice of a forum was almost always certain to be respected in both federal and State courts.
89
345 U.S. 395 73 S.Ct. 760 97 L.Ed. 1105 POULOSv.STATE OF NEW HAMPSHIRE. No. 341. Argued Feb. 3, 1953. Decided April 27, 1953. Rehearing Denied June 8, 1953. See 345 U.S. 978, 73 S.Ct. 1119. [Syllabus from pages 395-396 intentionally omitted] Mr. Hayden C. Covington, Brooklyn, N.Y., for appellant. Mr. Gordon M. Tiffany, Concord, N.H., for appellee. Mr. Justice REED delivered the opinion of the Court. 1 This appeal presents the validity of a conviction of appellant for conducting religious services in a public park of Portsmouth, New Hampshire, without a required license, when proper application for the license had been arbitrarily and unreasonably refused by the City Council. The conclusion depends upon consideration of the principles of the First Amendment secured against state abridgment by the Fourteenth.1 2 Appellant is one of Jehovah's Witnesses. Permission for appellant and another witness, now deceased, was sought to conduct services in Goodwin Park on June 25 and July 2. They offered to pay all proper fees and charges, and complied with the procedural requirements for obtaining permission to use the park. When the license was refused on May 4, appellant nevertheless held the planned services and continued them until arrested. He was charged with violation of § 22 of the city ordinance set out below.2 On conviction in the Municipal Court he was fined $20 and took an appeal which entitled him to a plenary trial before the Superior Court. Before that trial appellant moved to dismiss the complaints on the ground that 'the ordinance as applied was unconstitutional and void.' This motion on the constitutional question, pursuant to New Hampshire practice, was transferred to the Supreme Court. It ruled, as it had on a former prosecution under a different clause of an identical section, so far as pertinent, of a New Hampshire statute, against one Cox. State v. Cox, 91 N.H. 137, 143, 16 A.2d 508, that: 3 'The discretion thus vested in the authority (city council) is limited in its exercise by the bounds of reason, in uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination. A systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways, is the statutory mandate. The licensing authority has no delegation of power in excess of that which the legislature granting the power has, and the legislature attempted to delegate no power it did not possess.' State v. Derrickson, 97 N.H. 91, 92, 81 A.2d 312, 313. 4 In Cox v. State of New Hampshire, 312 U.S. 569, at page 572, 61 S.Ct. 762, at page 765, 85 L.Ed. 1049, we affirmed on appeal from the New Hampshire conviction of Cox, acknowledging the usefulness of the state court's carefully phrased interpretive limitation on the licensing authority. The Supreme Court of New Hampshire went on to hold the challenged clause in this present prosecution valid also in these words: 5 'The issue which this case presents is whether the city of Portsmouth can prohibit religious and church meetings in Goodwin Park on Sundays under a licensing system which treats all religious groups in the same manner. Whether a city could prohibit religious meetings in all of its parks is a doubtful question which we need not decide in this case. What we do decide is that a city may take one of its small parks and devote it to public and nonreligious purposes under a system which is administered fairly and without bias or discrimination.' 6 Thereupon it discharged the case. 7 The result of this action was to open the case now here in the Superior Court for trial. At the conclusion of the evidence, appellant raised federal issues by a motion to dismiss the complaint set out below.3 The Superior Court passed upon the issues raised. It held that Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, determined the validity of the section of the ordinance under attack; that the refusal of the licenses by the City Council was arbitrary and unreasonable, but refused to dismiss the prosecution on that ground because: 8 'The respondents could have raised the question of their right to licenses to speak in Goodwin Park by proper civil proceedings in this Court, but they chose to deliberately violate the ordinance.' 9 On appeal, the Supreme Court of New Hampshire affirmed.4 It held the ordinance valid on its face under Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. While the Cox case involved the clause of the ordinance, § 22 relating to 'parade or procession upon any public street or way,' the New Hampshire Supreme Court thought the present prosecution was 'under a valid ordinance which requires a license before open air public meetings may be held.' This was the first ruling on the public speech clause. Cf. State v. Cox, 91 N.H. at page 143, 16 A.2d 508; Cox v. State of New Hampshire, 312 U.S. at page 573, 61 S.Ct. at page 764, 85 L.Ed. 1049. As the ordinance was valid on its face the state court determined the remedy was by certiorari to review the unlawful refusal of the Council to grant the license, not by holding public religious services in the park without a license, and then defending because the refusal of the license was arbitrary. 10 Appellant's challenge on federal grounds to the action and conclusion of the New Hampshire courts is difficult to epitomize. By paragraph 3 of his motion to dismiss, note 3, supra, appellant relied on the principles of the First Amendment for protection against the city ordinance. In his statement of jurisdiction, the question presented, No. I, the illegal denial of his application for a license, was urged as a denial of First Amendment principles.5 In his brief, he phrases the issue differently as indicated below.6 We conclude that appellant's contentions are, first, no license for conducting religious ceremonies in Goodwin Park may be required because such a requirement would abridge the freedom of speech and religion guaranteed by the Fourteenth Amendment; second, even though a license may be required, the arbitrary refusal of such a license by the Council, resulting in delay, if appellant must, as New Hampshire decided, pursue judicial remedies, was unconstitutional, as an abridgment of free speech and a prohibition of the free exercise of religion. The abridgment would be because of delay through judicial proceedings to obtain the right of speech and to carry out religious exercises. The due process question raised by appellant as a part of the latter constitutional contention disappears by our holding, as indicated later in this opinion, that the challenged clause of the ordinance and New Hampshire's requirement for following a judicial remedy for the arbitrary refusal are valid. This analysis showing an attack on the ordinance as applied as repugnant to the principles of the First Amendment and a determination of its validity by the New Hampshire Supreme Court requires us to take jurisdiction by appeal.7 The state ground for affirmance, i.e., the failure to take certiorari from the action refusing a license, depends upon the constitutionality of the ordinance. 11 First. We consider the constitutionality of the requirement that a license from the city must be obtained before conducting religious exercises in Goodwin Park. Our conclusion takes into consideration the interpretive limitation repeated from Cox v. New Hampshire, quoted at p. 2 of this opinion (73 S.Ct. 763). This state interpretation is as though written into the ordinance itself. Winters v. People of State of New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840. It requires uniform, nondiscriminatory and consistent administration of the granting of licenses for public meetings on public streets or ways or such a park as Goodwin Park, abutting thereon.8 The two opinions of the Supreme Court of New Hampshire do not state in precise words that reasonable opportunities for public religious or other meetings on public property must be granted under this ordinance to such religious organizations as Jehovah's Witnesses. In the former appeal of this controversy in the Derrickson case, supra, New Hampshire decided that the city could exclude, without discrimination, all religious meetings from Goodwin Park, if it so desired, leaving that one park, among several, there being no showing of its unique advantages for religious meetings, as a retreat for quietness, contemplation or other nonreligious activities. The Supreme Court refused to determine whether religious meetings could be excluded from all parks at all times. That has not been decided in this appeal. Informed witnesses at this trial without contradiction testified that no public religious services were ever licensed in any Portsmouth park. There was no allocation of parks between religious and nonreligious meetings. The Superior Court held the refusal of this license arbitrary and unreasonable. Obviously the license required is not the kind of prepublication license deemed a denial of liberty since the time of John Milton but a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved.9 While there was no assertion of the invalidity of the ordinance on its face, the Supreme Court determined the validity of the ordinance as applied. See Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 287, 42 S.Ct. 106, 107, 66 L.Ed. 239; Charleston Federal Sav. & Loan Ass'n v. Alderson, 324 U.S. 182, 185—186, 65 S.Ct. 624, 627, 89 L.Ed. 857.10 We can only conclude from these decisions that the Supreme Court of New Hampshire has held that the ordinance is valid and, as now written, made it obligatory upon Ports-mouth to grant a license for these religious services in Goodwin Park. The appellant's contention that the Council's application of the ordinance so as to bar all religious meetings in Goodwin Park without a license, made the ordinance unconstitutional, was not sustained by the Supreme Court of New Hampshire. Appellant's brief, p. 3, continues the claim in this Court as follows: 12 'This exception presented to the Supreme Court of New Hampshire the question. It is whether the ordinance as enforced by the City Council, under its policy to refuse religious meetings in the park, was a violation of the federal Constitution.' 13 By its construction of the ordinance the state left to the licensing officials no discretion as to granting permits, no power to discriminate, no control over speech. There is therefore no place for narrowly drawn regulatory requirements or authority. The ordinance merely calls for the adjustment of the unrestrained exercise of religions with the reasonable comfort and convenience of the whole city. Had the refusal of the license not been in violation of the ordinance, the Supreme Court would not, we are sure, have required the appellant in its next application to go through the futile gesture of certiorari only to be told the Portsmouth Council's refusal of a license was a valid exercise of municipal discretion under the ordinance and the Fourteenth Amendment. Such state conclusions are not invalid, although they leave opportunity for arbitrary refusals that delay the exercise of rights. 14 The principles of First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction. It is a nonsequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated the contrary. It has indicated approval of reasonable nondiscriminatory regulation by governmental authority that preserves peace, order and tranquillity without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion.11 When considering specifically the regulation of the use of public parks, this Court has taken the same position. See the quotation from the Hague case below and Kunz v. People of State of New York, 340 U.S. 290, 293—294, 71 S.Ct. 312, 314—315, 95 L.Ed. 280; Saia v. People of State of New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574. In these cases, the ordinances were held invalid, not because they regulated the use of the parks for meeting and instruction but because they left complete discretion to refuse the use in the hands of officials. 'The right to be heard is placed in the uncontrolled discretion of the Chief of Police.' 334 U.S. at page 560, 68 S.Ct. at page 1150, 92 L.Ed. 1574. '(W)e have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.' 340 U.S. at page 294, 71 S.Ct. at page 315, 95 L.Ed. 280. 15 There is no basis for saying that freedom and order are not compatible. That would be a decision of desperation. Regulation and suppression are not the same,12 either in purpose or result, and courts of justice can tell the difference. We must and do assume that with the determination of the Supreme Court of New Hampshire that the present ordinance entitles Jehovah's Witnesses to hold religious services in Goodwin Park at reasonable hours and times, the Portsmouth Council will promptly and fairly administer their responsibility in issuing permits on request. 16 Second. New Hampshire's determination that the ordinance is valid and that the Council could be compelled to issue the requested license on demand brings us face to face with another constitutional problem. May this man be convicted for holding a religious meeting without a license when the permit required by a valid enactment—the ordinance in this case—has been wrongfully refused by the municipality? 17 Appellant's contention is that since the Constitution guarantees the free exercise of religion, the Council's unlawful refusal to issue the license is a complete defense to this prosecution. His argument asserts that if he can be punished for violation of the valid ordinance because he exercised his right of free speech, after the wrongful refusal of the license, the protection of the Constitution is illusory. He objects that by the Council's refusal of a license, his right to preach may be postponed until a case, possibly after years, reaches this Court for final adjudication of constitutional rights. Poulos takes the position that he may risk speaking without a license and defeat prosecution by showing the license was arbitrarily withheld. 18 It must be admitted that judicial correction of arbitrary refusal by administrators to perform official duties under valid laws is exulcerating and costly. But to allow applicants to proceed without the required permits to run businesses, erect structures, purchase firearms, transport or store explosives or inflammatory products, hold public meetings without prior safety arrangements or take other unauthorized action is apt to cause breaches of the peace or create public dangers. The valid requirements of license are for the good of the applicants and the public. It would be unreal to say that such official failures to act in accordance with state law, redressable by state judicial procedures, are state acts violative of the Federal Constitution. Delay is unfortunate but the expense and annoyance of litigation is a price citizens must pay for life in an orderly society where the rights of the First Amendment have a real and abiding meaning. Nor can we say that a state's requirement that redress must be sought through appropriate judicial procedure violates due process.13 19 It is said that Royall v. State of Virginia, 116 U.S. 572, 6 S.Ct. 510, 29 L.Ed. 735; Cantwell v. State of Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 904, 84 L.Ed. 1213, and Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, stand as decisions contrary to the New Hampshire judgment. In the Royall case two statutes were involved. One laid down the requirement that before attorneys could practice law in Virginia they had to obtain a special 'revenue license.' At the time this statute was enacted, Virginia law permitted license fees to be paid in either 'tax due coupons' or money. Subsequently Virginia passed another statute with which the Royall case was concerned. It provided that license fees could only be paid in 'lawful money of the United States'. Royall tendered 'tax due coupons' for the amount of the license fee, had them refused, and Royall then proceeded to practice law without the license. The statute requiring payment in money was held unconstitutional: 20 'Admitting this, it is still contended, on behalf of the commonwealth, that it was unlawful for the plaintiff in error to practice his profession without a license, and that his remedy was against the officers to compel them to issue it. It is doubtless true, as a general rule, that where the officer whose duty it is to issue a license refuses to do so, and that duty is merely ministerial, and the applicant has complied with all the conditions that entitle him to it, the remedy by mandamus would be appropriate to compel the officer to issue it. That rule would apply to cases where the refusal of the officer was willful and contrary to the statute under which he was commissioned to act. But here the case is different. The action of the officer is based on the authority of an act of the general assembly of the state, which, although it may be null and void, because unconstitutional, as against the applicant, gives the color of official character to the conduct of the officer in his refusal; and although, at the election of the aggrieved party, the officer might be subjected to the compulsory process of mandamus to compel the performance of an official duty, nevertheless the applicant, who has done everything on his part required by the law, cannot be regarded as violating the law if, without the formality of a license wrongfully withheld from him, he pursues the business of his calling, which is not unlawful in itself, and which, under the circumstances, he has a constitutional right to prosecute. As to the plaintiff in error, the act of the general assembly of the state of Virginia forbidding payment of his license tax in its coupons, receivable for that tax by a contract protected by the constitution of the United States, is unconstitutional, and its unconstitutionality infects and nullifies the antecedent legislation of the state, of which it becomes a part, when applied, as in this case, to enforce an unconstitutional enactment against a party, not only without fault, but seeking merely to exercise a right secured to him by the constitution. * * * 21 'In the present case the plaintiff in error has been prevented from obtaining a license to practice his profession, in violation of his rights under the constitution of the United States. To punish him for practicing it without a license thus withheld is equally a denial of his rights under the constitution of the United States, and the law under the authority of which this is attempted must on that account and in his case be regarded as null and void.' 116 U.S. at pages 582—583, 6 S.Ct. at page 515, 29 L.Ed. 735. 22 In Cantwell v. State of Connecticut, the statute in question forbade solicitation for religious causes without a license with this discretionary power in the secretary of the public welfare council: 23 'Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect.' 310 U.S. at page 302, 60 S.Ct. at page 902, 84 L.Ed. 1213. We said, speaking of the secretary: 24 'If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth.' Id., 310 U.S. at page 305, 60 S.Ct. at page 904. 25 In the Thomas case, a statute of Texas was involved that required labor union organizers to obtain an organizer's card before soliciting membership. Vernon's Ann.Civ.St. art. 5154a, § 5, 323 U.S. at page 519, 65 S.Ct. at page 317, 89 L.Ed. 430, note 1. He was enjoined from soliciting membership without the card and violated the injunction. 323 U.S. at page 518, 65 S.Ct. at page 317. This Court concluded that Thomas was forbidden by the statute from making labor union speeches anywhere in Texas without a permit for solicitation of membership. 323 U.S. at page 532 et seq., 65 S.Ct. at page 315. The Court treated the statute as a prohibition of labor union discussion without an organizer's card anywhere within the bounds of Texas legislative power. It said: 26 'We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.' Id., 323 U.S. at page 540, 65 S.Ct. at page 327. 27 The Court allowed the unconstitutionality of the statute to be used as a complete defense to contempt of the injunction. 28 It is clear to us that neither of these decisions is contrary to the determination of the Supreme Court of New Hampshire. In both of the above cases the challenged statutes were held unconstitutional. In the Royall case, the statute requiring payment of the license fee in money was unconstitutional. In the Cantwell case the statute had not been construed by the state court 'to impose a mere ministerial duty on the secretary of the welfare council.' The right to solicit depended on his decision as to a 'religious cause.' 310 U.S. at page 306, 60 S.Ct. at page 904, 84 L.Ed. 1213. Therefore we held that a statute authorizing this previous restraint was unconstitutional even though an error might be corrected after trial. In the Thomas case the section of the Texas Act was held prohibitory of labor speeches anywhere on private or public property without registration. This made § 5 unconstitutional. The statutes were as though they did not exist. Therefore there were no offenses in violation of a valid law. In the present prosecution there was a valid ordinance, an unlawful refusal of a license, with remedial state procedure for the correction of the error. The state had authority to determine, in the public interest, the reasonable method for correction of the error, that is, by certiorari. Our Constitution does not require that we approve the violation of a reasonable requirement for a license to speak in public parks because an official error occurred in refusing a proper application. 29 Affirmed. 30 Mr. Justice FRANKFURTER, concurring in the result. 31 I am constrained to protest against the Court's discussion under first because it deals with an issue that is not here. 32 In no area of adjudication is the adage 'silence is golden' more pertinent, when there is no duty to speak, than in the series of problems to which a judicial reconciliation between liberty and order gives rise. It is more than a counsel of wisdom. When there is no duty to speak on such issues there is a duty not to speak. This is not so merely because constitutional pronouncements, when a case before the Court does not call for them, violate a constitutional practice sanctioned by history and reinforced by the costly experience of occasional departures from it. The practice is especially compelling in cases involving the scope and limits of judicial protection of religious freedom and freedom of speech. These present perhaps the most difficult issues for courts. By their very vastness, the themes to be translated into law lend themselves too readily to the innocent deceptions of rhetoric. Every new attempt to translate the legal content of these liberties impliedly brings into question prior attempts; at the least it encourages further efforts at exegesis. 33 The Court's opinion has carefully and, if I may say so, correctly defined the question to which it addresses itself in First. The Court finds that Poulos presents two contentions: 34 'first, no license for conducting religious ceremonies in Goodwin Park may be required because such a requirement would abridge the freedom of speech and religion guaranteed by the Fourteenth Amendment; second, even though a license may be required, the arbitrary refusal of such a license by the Council, resulting in delay, if appellant must, as New Hampshire decided, pursue judicial remedies, was unconstitutional, as an abridgment of free speech and a prohibition of the free exercise of religion.' 35 If lucid English means what it unambiguously says, the 'first' contention in the above quotation—'no license for conducting religious ceremonies in Goodwin Park may be required because such a requirement would abridge the freedom of speech and religion guaranteed by the Fourteenth Amendment'—means that the Due Process Clause of the Fourteenth Amendment bars New Hampshire from requiring a license for 'an open air public meeting,' as is required by the ordinance of Portsmouth.1 And this in legal terms is a claim by the appellant that the ordinance (for jurisdictional purposes, a statute) is void on its face. Such precisely was the explicit claim made in Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. In the Cox case the claim was that the scheme of licensing as such was out of constitutional bounds. It was to that issue that our unanimous decision was directed. From the beginning of the litigation that claim was explicitly rejected in the present case and at no subsequent stage of the litigation has Poulos claimed that the licensing scheme as such was void. No such claim is made in his statement as to jurisdiction, in his reply to the statement in opposition, or in his brief and reply brief on the merits. Kai gar, as the expressive Greek phrase ran—naturally so. Experienced counsel for Poulos tried to take himself from under the Cox decision and distinguished it from this case in that here 'the respondents (the codefendant, Derrickson, died after the trial in the New Hampshire Superior Court) have attempted to comply with the ordinance and offered to pay the necessary fee and expenses.' It is not that Poulos estopped himself, by applying for a license, from thereafter assailing the statute as void. It is that throughout he conceded the ordinance to be 'valid on its face.' State v. Poulos, 97 N.H. 352, 354, 88 A.2d 860, 861. 36 The real constitutional attack that Poulos makes in the proceedings which are here under review, in all the briefs that are here filed, and in the oral argument, is founded on the fact that he was denied the opportunity to set up in a prosecution, under § 25 of the Portsmouth ordinance, for speaking without a license, the claim that in denying the license for which he applied the Portsmouth City Council acted arbitrarily and unreasonably. The only issue that arises from the proceedings had in the Portsmouth Municipal Court, which fined Poulos $20, in the Superior Court, which sustained the fine, and in the Supreme Court of New Hampshire, which affirmed the Superior Court, was whether the remedy for the concededly wrongful refusal to grant Poulos a license was mandamus to the City Council. These courts all agreed that he could not set up as a defense in the prosecution for speaking without a license the arbitrary conduct of the City Council in denying him one. 37 The matter was put with entire accuracy in the ruling of the Superior Court, which the Supreme Court found unexceptionable: 38 "Counsel have tried these cases on the theory that the refusal of the City Council to grant licenses to the respondents was in issue. It is found as a fact that the action of the City Council in refusing to grant licenses to the respondents was arbitrary and unreasonable, but the Court rules as a matter of law that this issue is not properly before it in these proceedings." See State v. Poulos, supra, 97 N.H. at page 353, 88 A.2d at page 861. 39 The validity of this procedural requirement of New Hampshire that the remedy for an unlawful denial of a license is mandamus or certiorari—is the only issue which the New Hampshire Supreme Court had before it: 40 'According to the (Superior) Court, the defendants misconceived their remedy. It has been conceded by the defense on this transfer (of the case from the Superior Court), as well as on the first one, that the ordinance is valid on its face. It is identical in language with the statute that was construed as valid in State v. Cox, 91 N.H. 137, 14 A.2d 508, which was affirmed in Cox v. (State of) New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. It is not disputed that the ordinance applies to the park that was the scene of the open air meetings in question. No objection has been made to the application of the ordinance to the areas where the meetings took place, and no exception taken to any finding or ruling with respect thereto.' See State v. Poulos, supra, 97 N.H. at page 354, 88 A.2d at page 861. 41 Nowhere in any one of the four documents submitted to this Court on behalf of Poulos is there any showing that more than this procedural issue is before us. The grievance that is here is not that a license was required for speaking in Goodwin Park. The claim is that, having duly complied with this requirement by applying for a license that was then wrongfully refused, Poulos was free to speak without a license, and that he was not required to go to the Superior Court for a mandamus against the City Council. 42 In short, what is discussed under First in the Court's opinion would have been precisely appropriate had Poulos made the claim made in Cox, namely, that the congregation of Jehovah's Witnesses were not required to apply for a license, but is wholly without pertinence on the present record. 43 To be sure, Poulos makes the claim—having conceded that the statute is valid on its face—that the ordinance is unconstitutional 'as applied' 'under the facts in this case.' But what 'facts'? The facts are these: having complied with the statute requiring a license, he was not allowed to set up as a defense for its violation the fact that the want of a license was due to the illegal conduct of the licensing agency. 44 That is precisely what is correctly defined by the Court as the 'second' contention: 45 'second, even though a license may be required, the arbitrary refusal of such a license by the Council, resulting in delay, if appellant must, as New Hampshire decided, pursue judicial remedies, was unconstitutional, as an abridgment of free speech and a prohibition of the free exercise of religion.' 46 But that is not the 'second' contention. It is the only contention. It is the only contention that was before the New Hampshire Supreme Court in the proceeding we are reviewing, and it is the only contention, however variously phrased, on which Poulos can obtain review here.2 And this is the contention—the statute 'as applied' in this sense—that the Court treats in its discussion under Second. 47 On this, the only issue that is here, I agree that New Hampshire was not barred by the Due Process Clause from requiring Poulos to mandamus the City Council after it had unlawfully refused him a permit. New Hampshire may in these circumstances, I agree, refuse him permission to set up the Council's arbitrary denial of his application as a defense to prosecution under the ordinance, which fixes the penalty at $20. There is nothing in the record to suggest that the remedy to which the Supreme Court of New Hampshire confined Poulos effectively frustrated his right of utterance, let alone that it circumvented his constitutional right by a procedural pretense. Poulos' application for a permit was denied on May 4, 1950, and the meetings for which he sought the permit were to be held on June 25 and July 2. In the absence of any showing that Poulos did not have available a prompt judicial remedy3 to secure from the Council his right, judicially acknowledged and emphatically confirmed on behalf of the State at the bar of this Court, the requirement by New Hampshire that Poulos invoke relief by way of mandamus or certiorari and not take the law into his own hands did not here infringe the limitations which the Due Process Clause of the Fourteenth Amendment places upon New Hampshire. It would trivialize that Clause to bar New Hampshire from determining that legal issues raised by denial of a license, under a constitutionally valid system, should not be adjudicated in the first instance in police courts or, in any event, should be determined in an appropriately designed procedure and not as a defense to a penal action. 48 In reaching this conclusion the New Hampshire Supreme Court did not construe the ordinance; it did not, in the technical meaning of the phrase, apply the statute. 'We see no reason', said that Court, 'for overruling the law as stated in this jurisdiction that a wrongful refusal to license is not a bar to a prosecution for acting without a license.' State v. Poulos, supra, 97 N.H. at page 354, 88 A.2d at page 861. What the Supreme Court of New Hampshire enforced was not a part of the licensing ordinance but the general procedural law of New Hampshire. It stretches the doctrine of Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239, beyond reasonable limits to find that a requirement. of New Hampshire procedure is an application of the licensing statute, rather than an application of the common law of New Hampshire. Therefore, I think, the case is properly here on certiorari and not appeal. 49 Mr. Justice BLACK, dissenting. 50 The Court's holding in this case is one more in a series of recent decisions which fail to protect the right of Americans to speak freely. I join Mr. Justice DOUGLAS' forceful dissent and wish to add only a few words. 51 I agree with the Court that the validity of the speech licensing phase of this New Hampshire law was not upheld in Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. That case merely recognized that the power of a state to regulate streets for traffic purposes carried with it a right to regulate street parades.1 Nothing said there indicated that a state's power to regulate traffic carried with it a right to censor public speeches or speakers merely because the state did not wish certain speakers to be heard. Here the record shows beyond doubt that objection to Poulos' talking was not rooted in a permissible regulation as to the time and place street or park speeches could be made. For the New Hampshire Supreme Court tells us that its officials 'arbitrarily and unreasonably' refused to grant Poulos a 'license' to talk. This shows that the State's speech licensing officials actually denied Poulos his constitutional right of free speech.2 The Court now holds Poulos can be branded a criminal for making a talk at the very time and place which the State Supreme Court has held its licensing officials could not legally forbid. I do not challenge the Court's argument that New Hampshire could prosecute a man who refused to follow the letter of the law to procure a license to 'run businesses,' 'erect structures,' 'purchase firearms,' 'store explosives,' or, I may add, to run a pawnshop. But the First Amendment affords freedom of speech a special protection; I believe it prohibits a state from convicting a man of crime whose only offense is that he makes an orderly religious appeal after he has been illegally 'arbitrarily and unreasonably' denied a 'license' to talk. This to me is a subtle use of a creeping censorship loose in the land. 52 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 53 The Court concedes, as indeed it must under our decisions, see Royall v. State of Virginia, 116 U.S. 572, 6 S.Ct. 510, 29 L.Ed. 735; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, that if denial of the right to speak had been contained in a statute, appellant would have been entitled to flout the law, to exercise his constitutional right to free speech, to make the address on July 2, 1950, and when arrested and tried for violating the statute, to defend on the ground that the law was unconstitutional. An unconstitutional statute is not necessarily a nullity; it may have intermediate consequences binding upon people. See Chicot County Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329. But when a legislature undertakes to proscribe the exercise of a citizen's constitutional right to free speech, it acts lawlessly; and the citizen can take matters in his own hands and proceed on the basis that such a law is no law at all. See De Jonge v. State of Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278. 54 The reason is the preferred position granted freedom of speech, freedom of press, freedom of assembly, and freedom of religion by the First Amendment. See Thomas v. Collins, supra, 323 U.S. at page 530, 65 S.Ct. at page 322, 89 L.Ed. 430; Murdock v. Com. of Pennsylvania, 319 U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292. The command of the First Amendment (made applicable to the States by the Fourteenth) is that there shall be no law which abridges those civil rights. The matter is beyond the power of the legislature to regulate, control, or condition. The case is therefore quite different from a legislative program in the field of business, labor, housing, and the like where regulation is permissible and the claim of unconstitutionality usually can be determined only by the manner or degree of application of the statute to an aggrieved person. 55 A legislature that undertakes to license or censor the right of free speech is imposing a prior restraint, see Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, odious in our history. The Constitution commands that government keep its hands off the exercise of First Amendment rights. No matter what the legislature may say, a man has the right to make his speech, print his handbill, compose his newspaper, and deliver his sermon without asking anyone's permission. The contrary suggestion is abhorrent to our traditions. 56 If the citizen can flout the legislature when it undertakes to tamper with his First Amendment rights, I fail to see why he may not flout the official or agency who administers a licensing law designed to regulate the exercise of the right of free speech. defiance of a statute is hardly less harmful to an orderly society than defiance of an administrative order. The vice of a statute, which exacts a license for the right to make a speech, is that it adds a burden to the right. The burden is the same when the officials administering the licensing system withhold the license and require the applicant to spend months or years in the courts in order to win a right which he Constitution says no government shall deny. 57 It was said by way of dictum in Royall v. State of Virginia, supra, 116 U.S. at page 582, 6 S.Ct. at page 515, 29 L.Ed. 735, that 'as a general rule,' if an officer, entrusted with a licensing power, has only 'ministerial' duties to perform, 'the remedy by mandamus would be appropriate to compel the officer' to issue the license. I do not agree that the present statute, as construed by the New Hampshire court, imposes merely a ministerial duty on the city council. The construction, by which we are bound, gives wide range to the discretion of the city council: 58 'The discretion thus vested in the authority is limited in its exercise by the bounds of reason, in uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination. A systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways (here the parks), is the statutory mandate. The licensing authority has no delegation of power in excess of that which the legislature granting the power has, and the legislature attempted to delegate no power it did not possess.' State v. Cox, 91 N.H. 137, 143, 16 A.2d 508, 513. 59 The requirement that the licensing authority stay within 'the bounds of reason' and that it be 'free from improper or inappropriate considerations and from unfair discrimination' is a command that it act reasonably, not capriciously or arbitrarily. But even a reasonable regulation of the right to free speech is not compatible with the First Amendment.1 Of course, a state court deny the use of a park to one religious group if a prior application had been granted to another group and the meetings would conflict. But there is no suggestion by New Hampshire that its system of regulation vests the licensing authority with only that limited power. The gloss which the New Hampshire court has placed on the statute grants a power reasonably to regulate free speech. That unfortunately is a doctrine that has been slowly creeping into our constitutional law.2 It has no place there. It is a doctrine dangerous to liberty and destructive of the great rights guaranteed by the First Amendment. 60 So, one answer to the Court's holding that appellant should have gone into court to compel the issuance of a license is that the licensing power was discretionary not ministerial and that a discretionary power to license free speech is unconstitutional. 61 There is another answer which is found in Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. In that case it was argued that a licensing power in a state statute be construed so as to limit the power of the licensing authority to ministerial acts. We rejected that offer on two grounds. In the first place, the statute had not been so narrowly construed by the state court. In the second place, the availability of judicial relief would not in any event save the statute. What Mr. Justice Roberts, writing for a unanimous Court, said was this. 310 U.S. at page 306, 60 S.Ct. at page 904: 62 '* * * the availability of a judicial remedy for abuses in the system of licensing still leaves that system one of previous restraint which, in the field of free speech and press, we have held inadmissible. A statute authorizing previous restraint upon the exercise of the guaranteed freedom by judicial decision after trial is as obnoxious to the Constitution as one providing for like restraint by administrative action.' 63 What Mr. Justice Roberts said needs to be repeated over and again. There is no free speech in the sense of the Constitution when permission must be obtained from an official before a speech can be made. That is a previous restraint condemned by history and at war with the First Amendment. The nature of the particular official who has the power to grant or deny the authority does not matter. Those who wrote the First Amendment conceived of the right to free speech as wholly independent of the prior restraint of anyone. The judiciary was not granted a privilege of restraint withheld from other officials. For history proved that judges too were sometimes tyrants. 1 Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155. Constitution, First Amendment: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' Id., Fourteenth Amendment: '* * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' 2 'Section 22. License Required. No theatrical or dramatic representation shall be performed or exhibited and no parade or procession upon any public street or way, and no open air public meeting upon any ground abutting thereon shall be permitted unless a license therefor shall first be obtained from the City Council. 'Section 23. License Form. Every such license shall be in writing and shall specify the day and hour of the permit to perform or exhibit, or of such parade, procession or open air public meeting. 'Section 24. Fee. The fee for such license shall be not more than Three Hundred Dollars for each day such licensee shall perform or exhibit or such parade, procession, or open air public meeting shall take place, but the fee for a license to exhibit in any hall shall not exceed Fifty Dollars. 'Section 25. Penalty. Any person who violates section 22 of this Article shall be fined Twenty Dollars.' 3 '1. The undisputed evidence shows that the members of the city council and the city council itself acted arbitrarily, capriciously and without support of law and of fact when they denied the application made by Jehovah's witnesses in behalf of the defendants to deliver the public talks upon the occasions in question. '2. The undisputed evidence shows that the park in question is a public park, dedicated as such without any limitations in the deed of dedication or in the ordinances of the City of Portsmouth and the defendants had the legal right to deliver the talks in the park and it was the duty of the city council to issue to the defendants permits to use the public park in question for public meetings and public talks. '3. If the ordinance is construed and applied so as to justify convictions of the defendants under the facts in this case, then the ordinance is unconstitutional as construed and applied because it abridges the rights of the defendants to freedom of assembly, freedom of speech and freedom of worship, contrary to the Bill of Rights of the New Hampshire Constitution and the First and Fourteenth Amendments to the Constitution of the United States.' 4 Poulos v. State of New Hampshire, 97 N.H. 352, 88 A.2d 860, 863. 5 'Is the construction of the laws of New Hampshire and the ordinance in question—so as to completely deny the appellant the right to challenge the federal constitutionality of the ordinance, as enforced, construed and applied in criminal proceedings brought to punish appellant for holding a meeting and giving a speech in the city park of Portsmouth without a permit, which was applied for and illegally denied according to the holdings of the courts below—an abridgment of the rights of appellant to freedom of speech and assembly contrary to the First and Fourteenth Amendments to the Constitution of the United States?' 6 'Is the administration and enforcement of the ordinance by the City Council, requiring a permit for holding meetings in the parks of Portsmouth so as to deny all applications made by religious organizations to hold religious meetings and deliver religious talks in the parks of Portsmouth, an abridgment of freedom of speech, assembly and worship in violation of the First and Fourteenth Amendments to the United States Constitution? 'Does the construction and application of the ordinance and the law of New Hampshire so as to require appellant to apply for a writ of mandamus or certiorari as the only remedies to correct the unconstitutional administration of the ordinance, and also so as to deny the defense in the criminal prosecution that the construction and application of the ordinance by the City Council was in violation of his rights guaranteed by the federal Constitution, amount to an abridgment of freedom of speech, assembly and worship contrary to the First and Fourteenth Amendments to the United States Constitution?' 7 King Mfg. Co. v. City Council of Augusta, 277 U.S. 100, 101, 48 S.Ct. 489, Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869. When the appeal was docketed we postponed determination of jurisdiction of the appeal to the hearing on the merits. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), Rules of the Supreme Court No. 12(5), 28 U.S.C.A. 8 State v. Derrickson, 97 N.H. 91, 94, 81 A.2d 312. 9 Niemotko v. Maryland, 340 U.S. 268, concurrence at page 282, 71 S.Ct. 325, 333, 95 L.Ed. 267: 'A licensing standard which gives an official authority to censor the content of a speech differs toto coelo from one limited by its terms, or by nondiscriminatory practice, to considerations of public safety and the like.' 10 'It has been conceded by the defense on this transfer, as well as on the first one, that the ordinance is valid on its face. It is identical in language with the statute that was construed as valid in State v. Cox, 91 N.H. 137, 16 A.2d 508, which was affirmed in Cox v. (State of) New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. It is not disputed that the ordinance applies to the park that was the scene of the open air meetings in question. No objection has been made to the application of the ordinance to the areas where the meetings took place, and no exception taken to any finding or ruling with respect thereto.' 88 A.2d 860, 861. 'Again we call attention to the fact that in this jurisdiction if a licensing statute is constitutional and applies to those seeking a license, the remedy here provided consists of proceedings against the licensing authority that has wrongfully denied the license.' Id., 88 A.2d at pages 862—863. Distinguishing Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, where a defense of unconstitutionality was allowed in a prosecution for holding a public meeting without a license, the State Court said: 'Permits had been refused for public meetings, but, unlike the case at bar, the prosecutions were contemplated under ordinances that were invalid.' Id., 88 A.2d at page 863. 'The remedy of the defendant Pulos for any arbitrary and unreasonable conduct of the city council was accordingly in certiorari or other appropriate civil proceedings.' Id., 88 A.2d at page 863. This conclusion follows the rule in State v. Stevens, 78 N.H. 268, 269—270, 99 A. 723, L.R.A.1917F, 528, that where a license statute is valid an erroneous refusal of the license cannot be attacked collaterally on prosecution for acting without a license. 11 Constitutionally protected right to circulate publications does not include door-to-door canvassing for subscriptions contrary to the reasonable limitations of a municipal ordinance. See Breard v. City of Alexandria, 341 U.S. 622, 641, 71 S.Ct. 920, 932, 95 L.Ed. 1233. Lovell v. City of Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 669, 82 L.Ed. 949: 'The ordinance is comprehensive with respect to the method of distribution. It covers every sort of circulation 'either by hand or otherwise.' There is thus no restriction in its application with respect to time or place. It is not limited to ways which might be regarded as inconsistent with the maintenance of public order, or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the city manager.' In considering a required permit in Hague v. C.I.O., 307 U.S. 496, at page 502, 59 S.Ct. 954, at page 958, 83 L.Ed. 1423. Mr. Justice Roberts, in considering an ordinance that gave the Director of Public Safety discretion as to issue of park permits, wrote: 'Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.' 307 U.S. at pages 515 516, 59 S.Ct. at page 964, 83 L.Ed. 1423. Schneider v. State of New Jersey, 308 U.S. 147, 160—161, 60 S.Ct. 146, 150, 84 L.Ed. 155: 'Municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion.' Cantwell v. State of Connecticut, 310 U.S. 296, 306—307, 60 S.Ct. 900, 904, 84 L.Ed. 1213: 'Even the exercise of religion may be at some slight inconvenience in order that the state may protect its citizens from injury. Without doubt a state may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The state is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.' In considering conviction, for an unlicensed religious parade, under a statute with provisions similar to this ordinance, we said: 'Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions.' Cox v. State of New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049. 'If a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets. We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened and constitutional right.' Id., 312 U.S. at page 576, 61 S.Ct. at page 766. 12 Near v. State of Minnesota, 283 U.S. 697, 712, 51 S.Ct. 625, 629, 75 L.Ed. 1357; Breard v. City of Alexandria, 341 U.S. 622, 641, 71 S.Ct. 920, 932, 95 L.Ed. 1233; First Amendment. 13 It may be that in some states, the proof of proper application and unlawful refusal is a sufficient defense. It is also true that others punish activities without a license, following an unlawful refusal. Commonwealth v. McCarthy, 225 Mass. 192, 114 N.E. 287; State v. Stevens, 78 N.H. 268, 99 A. 723, L.R.A.1917C, 528; Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627; City of Montpelier v. Mills, 171 Ind. 175, 85 N.E. 6; Commonwealth v. Gardner, 241 Mass. 86, 134 N.E. 638; State v. Orr, 68 Conn. 101, 35 A. 770, 34 L.R.A. 279; City of Malden v. Flynn, 318 Mass. 276, 61 N.E.2d 107. A close parallel exists between unlawful refusals and failure to apply for license on the ground that such application would be unavailing. Such a defense is not allowed. 'It is well settled that where a licensing ordinance, valid on its face, prohibits certain conduct unless the person has a license, one who without a license engages in that conduct can be criminally prosecuted without being allowed to show that the application for a license would have been unavailing. * * * In short, the individual is given the choice of securing a license, or staying out of the occupation, or, before he acts, seeking a review in the civil courts of the licensing authority's refusal to issue him a license. Likewise in the case at bar the defendants are given the choice of complying with the regulation, or not engaging in the regulated activity, or, before they act, petitioning the appropriate civil tribunals for a modification of or exception from the regulation.' United States v. Slobodkin, D.C., 48 F.Supp. 913, 917. See cases cited, particularly Hall v. Geiger Jones Co., 242 U.S. 539, 554, 37 S.Ct. 217, 222, 61 L.Ed. 480. 1 When the case was first before the New Hampshire Supreme Court on a stipulation of facts essentially different from the findings on which the decision in the present case must rest, there was in issue the claim that the city may not refuse a license for religious meetings in one park even 'if there are still adequate places of assembly for those who wish to hold public open air church meetings.' This question was taken out of the case upon remand for the trial which resulted in the conviction now before us. It was then found that the refusal to grant a license in this case was 'arbitrary and unreasonable.' In its second review of the case, in the only decision that is now here, the New Hampshire Supreme Court assumed that the Council's action was unlawful. Accordingly all that is subject to review now is the question whether the procedural law of New Hampshire, in relation to an illegally withheld license, may constitutionally operate in the circumstances of this case. 2 See note 1, supra. 3 See, e.g., Nelson v. Morse, 91 N.H. 177, 178, 16 A.2d 61. 1 'They (appellants) were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, or for maintaining or expressing religious beliefs. Their right to do any one of these things apart from engaging in a 'parade or procession' upon a public street is not here involved and the question of the validity of a statute addressed to any other sort of conduct than that complained of is not before us.' Cox v. State of New Hampshire, 312 U.S. 569, 573, 61 S.Ct. 762, 764, 85 L.Ed. 1049. 2 In the Superior Court Poulos took the position that the city council's refusal to 'license' him to speak was 'arbitrary and unreasonable' and in violation of the right freely to assemble, speak and worship guaranteed by the First and Fourteenth Amendments. The State Supreme Court affirmed the Superior Court's holding that the council's refusal was arbitrary and unreasonable. 1 This marks a distinction between the present case and Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 764, 85 L.Ed. 1049. There the sole charge against appellants was that they were 'taking part in a parade or procession' on public streets without a license. We only held that New Hampshire's method of controlling travel on the streets of cities was permissible under the police power of the states. We distinguished that problem from like cases arising under the First Amendment, 312 U.S. at page 573, 61 S.Ct. at page 764, 'The sole charge against appellants was that they were 'taking part in a parade or procession' on public streets without a permit as the statute required. They were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, or for maintaining or expressing religious beliefs. Their right to do any one of these things apart from engaging in a 'parade or procession' upon a public street is not here involved and the question of the validity of a statute addressed to any other sort of conduct than that complained of is not before us.' 2 Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Feiner v. People of state of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267. Cf. Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Osman v. Douds, 339 U.S. 846, 70 S.Ct. 901, 94 L.Ed. 1328.
23
345 U.S. 495 73 S.Ct. 800 97 L.Ed. 1174 ESSO STANDARD OIL CO.v.EVANS et al. UNITED STATES v. EVANS et al. Nos. 330, 378. Argued March 10, 1953. Decided May 4, 1953. Mr. Oscar H. Davis, Washington, D.C., for the United States. Mr. William Waller, Nashville, Tenn., for Esso Standard Oil Co. Mr. K. Harlan Dodson, Jr., Nashville, Tenn., for appellees. Mr. Justice REED delivered the opinion of the Court. 1 These are appeals from the Supreme Court of Tennessee, affirming a Chancery Court judgment for some $196,000 in favor of the State Commissioner of Finance and Taxation, against Esso Standard Oil Co., the party of record in No. 330. Ultimately liable, the United States intervened in that litigation and brought a separate appeal here, No. 378. It contended that the State tax involved in barred by principles of sovereign immunity. This is a test case. We are told that if the tax is sustained, a liability for upwards of $4,000,000 will result. 2 The facts are these. During World War II the Government was actively engaged in the production and procurement of high octane aviation fuel. All such gasoline produced was purchased before it left the refinery and, by formal passage of title, became immediately the property of the Defense Supplies Corporation, a corporation wholly owned by the Reconstruction Finance Corporation, 6 Fed.Reg. 2972, as amended 6 Fed.Reg. 3363, and specifically exempt from state storage and use taxes, 55 Stat. 248. Release from storage by the producing companies occurred only on notification by the Petroleum Administration for War, in accordance with allocation of specific lots of fuel to various official consumers, including the Services and the Allies. The Air Force, in particular, then arranged for transportation of its various allotments—sometimes by government carrier—from the refineries to the nearest consuming point. 3 We are concerned with certain lots of Air Force fuel produced in the South at various plants and shipped through Memphis, Tennessee. It appears that in 1943 a shortage of storage facilities developed in the area, forcing resort to privately owned tanks. Appellant Esso and the Lion Oil Company were able to provide such service through tanks at various points near Memphis. As a result, the Government entered into extensive contracts with Esso which in turn rented the Lion tanks, providing that the Company would 'render services * * * in receiving, storing, handling and loading Government-owned fuel.' The Company's service charge ranged from 18/100 of a cent to 6 3/10 cents per gallon. The United States agreed to assume liability for all state taxes. Pursuant thereto, allotments of gasoline were moved by barge from refineries to these private tanks, stored there pending need, and later reshipped by truck to consuming air fields on order of the Air Force. The operations continued from 1943 through 1946 under several contracts of similar import. 4 August 2, 1949, the State, after investigation, demanded that Esso pay taxes in connection with these operations under the Tennessee gasoline tax, 2 Williams' Tenn. Code §§ 1126—1147. This statute, in material part, provided: 5 'Every distributor when engaged in such business in this state, shall pay to the state comptroller, through commissioner of finance and taxation, for the exclusive use of the state, a special privilege tax, in addition to all other taxes, for engaging in and carrying on such business in this state, in an amount equal to six cents for each gallon of gasoline, and six cents for each gallon of distillate refined, manufactured, produced, or compounded by such distributor and sold, stored or distributed by him in this state, or shipped, transported or imported by such distributor into, and distributed, stored or sold by him within this state, during such year; * * *.' § 1127. And § 1126 defines distribution as 6 'every person who engages in the business in the state of refining, manufacturing, producing, or compounding gasoline or distillate, and selling or storing the same in this state; and also every person who engages in the business in this state of transporting, importing, or causing to be imported, gasoline or distillate into this state, and distributing, storing, or making original sales of the same in this state, for any purpose whatsoever.' 7 Esso paid the required tax for the privilege of storing gasoline measured by the amount stored during the month of January 1944—the statute of limitations having run in regard to 1943 operations—and sued to recover. The Government intervened in the trial court and entered its plea, echoed by Esso, that the tax was barred by the constitutional doctrine of intergovernmental immunity; that to construe the Tennessee statute as applicable to storage off gasoline owned by the United States makes it repugnant to the Constitution and void. Both the Chancery Court and the Court or Appeals rejected the claimed immunity and held the statute valid as applied. We noted our probable jurisdiction on appeal. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). 8 The appellants take a firm stand on United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209, which they contend is an analogous case that compels reversal of this decision. They say, in effect, that the tax here is no less 'on' the property of the Federal Government than it was in that case, and in support of this claimed similarity they point to the following factors: that the statute grew out of the state's effort to tax sales to the final consumer, that the tax is paid but once, and this by the first producer or importer, and that refunds when the fuel is subsequently exported are provided. Thus the 'true character' of the tax, as one 'on property of the United States,' (250 S.W.2d 572) it is claimed, is precisely the same as that in Allegheny County. 9 Allegheny County, however, was quite different. The United States had leased certain machinery to the Mesta Machine Company. In imposing the state ad valorem property tax, Pennsylvania included in the Mesta assessment both the privately owned land and buildings, and the government machinery. Id., 322 U.S. at pages 179—180, 186, 64 S.Ct. at pages 912—913, 915. So the value of the federal property was, in part, the measure of the tax. We held the substance of this procedure was 'to lay an ad valorem general property tax on property owned by the United States', Id., 322 U.S. at page 185, 64 S.Ct. at page 915, and therefore invalid. Our holding was not 'dependent upon the ultimate resting place of the economic burden of the tax.' Id., 322 U.S. at page 189, 64 S.Ct. at page 916. 10 This tax was imposed because Esso stored gasoline. It is not, as the Allegheny County tax was, based on the worth of the government property. Instead, the amount collected is graduated in accordance with the exercise of Esso's privilege to engage in such operations; so it is not 'on' the federal property as was Pennsylvania's. Federal ownership of the fuel will not immunize such a private contractor from the tax on storage. It may generally, as it did here, burden the United States financially. But since James v. Dravo Contracting Co., 302 U.S. 134, 151, 58 S.Ct. 208, 217, 82 L.Ed. 155, this has been no fatal flaw. We must look further, and find either a stated immunity created by Congress in the exercise of a constitutional power,1 or one arising by implication from our constitutional system of dual government.2 11 Neither condition applies to the kind of governmental operations here involved. There is no claim of a stated immunity. And we find none implied. The United States, today, is engaged in vast and complicated operations in business fields, and important purchasing, financial, and contract transactions with private enterprise. The Constitution does not extend sovereign exemption from state taxation to corporations or individuals, contracting with the United States, merely because their activities are useful to the Government. We hold, therefore, that sovereign immunity does not prohibit this tax. 12 Appellants press a further point, that the Tennessee courts have discriminated against the Federal Government by the result in this case. They point to the fact that heretofore, specifically in Tennessee Oil Co. v. McCanless, 178 Tenn. 683, 157 S.W.2d 267, 162 S.W.2d 1081, a claim of immunity by a public body was sustained where the public body had leased the tanks from the private dealer. Apparently, appellants feel that the distinction between that case and this is so fine as to require similar results from any fair-minded court. We do not agree. Had the United States similarly rented the tanks from Esso, and thus stood firmly in its shoes as the organization exercising the privilege of storage, it would have fallen within the McCanless precedent. It did not do so, but instead paid Esso to receive, store, handle and load the fuel. The different results in the two cases thus accord with our conception of the operation of the Tennessee statute as a privilege tax. 13 Affirmed. 14 The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice JACKSON dissent. 15 Mr. Justice FRANKFURTER, not having heard the argument, took no part in the consideration or decision of this case. 1 Pittman v. Home Owners Loan Corporation, 308 U.S. 21, 60 S.Ct. 15, 84 L.Ed. 11; Carson v. Roane Anderson Co., 342 U.S. 232, 72 S.Ct. 257, 96 L.Ed. 257; Dameron v. Brodhead, 345 U.S. 322, 73 S.Ct. 721. 2 Mayo v. United States, 319 U.S. 441, 447, 63 S.Ct. 1137, 1140, 87 L.Ed. 1504; United States v. Allegheny County, supra.
910
345 U.S. 461 73 S.Ct. 809 97 L.Ed. 1152 TERRY et al.v.ADAMS et al. No. 52. Argued Jan. 16, 1953. Decided May 4, 1953. Rehearing Denied June 15, 1953. See 345 U.S. 1003, 73 S.Ct. 1128. Mr. J. Edwin Smith, Houston, Tex., and Mr. James M. Nabrit, Jr., Washington, D.C., for petitioners. Messrs. Edgar E. Townes, Jr., and Clarance F. McFarlane, Houston, Tex., for respondents. Mr. Justice BLACK announced the judgment of the Court and an opinion in which Mr. Justice DOUGLAS and Mr. Justice BURTON join. 1 In Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, we held that rules of the Democratic Party of Texas excluding Negroes from voting in the party's primaries violated the Fifteenth Amendment. While no state law directed such exclusion, our decision pointed out that many party activities were subject to considerable statutory control. This case raises questions concerning the constitutional power of a Texas county political organization called the Jaybird Democratic Association or Jaybird Party to exclude Negroes from its primaries on racial grounds. The Jabirds deny that their racial exclusions violate the Fifteenth Amendment. They contend that the Amendment applies only to elections or primaries held under state regulation, that their association is not regulated by the state at all, and that it is not a political party but a self-governing voluntary club. The District Court held the Jaybird racial discriminations invalid and entered judgment accordingly. 90 F.Supp. 595. The Court of Appeals reversed, holding that there was no constitutional or congressional bar to the admitted discriminatory exclusion of Negroes because Jaybird's primaries were not to any extent state controlled. 193 F.2d 600. We granted certiorari. 344 U.S. 883, 73 S.Ct. 180. There was evidence that: 2 The Jaybird Association or Party was organized in 1889. Its membership was then and always has been limited to white people; they are automatically members if their names appear on the official list of county voters. It has been run like other political parties with an executive committee named from the county's voting precincts. Expenses of the party are paid by the assessment of candidates for office in its primaries. Candidates for county offices submit their names to the Jaybird Committee in accordance with the normal practice followed by regular political parties all over the country. Advertisements and posters proclaim that these candidates are running subject to the action of the Jaybird primary. While there is no legal compulsion on successful Jaybird candidates to enter Democratic primaries they have nearly always done so and with few exceptions since 1889 have run and won without opposition in the Democratic primaries and the general elections that followed. Thus the party has been the dominant political group in the county since organization, having endorsed every county-wide official elected since 1889. 3 It is apparent that Jaybird activities follow a plan purposefully designed to exclude Negroes from voting and at the same time to escape the Fifteenth Amendment's command that the right of citizens to vote shall neither be denied nor abridged on account of race. These were the admitted party purposes according to the following testimony of the Jaybird's president: 4 'Q. * * * Now Mr. Adams, will you tell me specifically what is the specific purpose of holding these elections and carrying on this organization like you do? A. Good government. 5 'Q. Now I will ask you to state whether or not it is the opinion and policy of the Association that to carry on good government they must exclude negro citizens? A. Well, when we started it was and it is still that way, I think. 6 'Q. And then one of the purposes of your organization is for the specific purpose of excluding negroes from voting, isn't it? A. Yes. 7 'Q. And that is your policy? A. Yes. 8 'Q. I will ask you, that is the reason you hold your election in May rather than in June or July, isn't it? A. Yes. 9 'Q. Because if you held it in July you would have to abide by the statutes and the law by letting them vote? A. They do vote in July. 10 'Q. And if you held yours at that time they would have to vote too, wouldn't they? A. Why sure. 11 'Q. And you hold it in May so they won't have to? A. Well, they don't vote in ours but they can vote on anybody in the July election they want to. 12 'Q. But you are not answering my question. My question is that you hold yours in May so you won't have to let them vote, don't you? A. Yes. 13 'Q. And that is your purpose? A. Yes. 14 'Q. And your intention? A. Yes. 15 'Q. And to have a vote of the white population at a time when the negroes can't vote, isn't that right? A. That's right. 16 'Q. That is the whole policy of your Association? A. Yes. 17 'Q. And that is its purpose? A. Yes.' 18 The District Court found that the Jaybird Association was a political organization or party; that the majority of white voters generally abide by the results of its primaries and support in the Democratic primaries the persons endorsed by the Jaybird primaries; and that the chief object of the Association has always been to deny Negroes any voice or part in the election of Fort Bend County officials. 19 The facts and findings bring this case squarely within the reasoning and holding of the Court of Appeals for the Fourth Circuit in its two recent decisions about excluding Negroes from Democratic primaries in South Carolina. Rice v. Elmore, 4 Cir., 165 F.2d 387, and Baskin v. Brown, 4 Cir., 174 F.2d 391.1 South Carolina had repealed every trace of statutory or constitutional control of the Democratic primaries. It did this in the hope that thereafter the Democratic Party or Democratic 'Clubs' of South Carolina would be free to continue discriminatory practices against Negroes as voters. The contention there was that the Democratic 'Clubs' were mere private groups; the contention here is that the Jaybird Association is a mere private group. The Court of Appeals in invalidating the South Carolina practices answered these formalistic arguments by holding that no election machinery could be sustained if its purpose or effect was to deny Negroes on account of their race an effective voice in the governmental affairs of their country, state, or community. In doing so the Court relied on the principle announced in Smith v. Allwright, supra, 321 U.S. at page 664, 64 S.Ct. at page 765, that the constitutional right to be free from racial discrimination in voting '* * * is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election.' 20 The South Carolina cases are in accord with the commands of the Fifteenth Amendment and the laws passed pursuant to it. That Amendment provides as follows: 21 'The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.' The Amendment bans racial discrimination in voting by both state and nation. It thus establishes a national policy, obviously applicable to the right of Negroes not to be discriminated against as voters in elections to determine public governmental policies or to select public officials, national, state, or local. Shortly after its adoption Mr. Chief Justice Waite speaking for this Court said: 22 'It follows that the amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.' United States v. Reese, 92 U.S. 214, 218, 23 L.Ed. 563. Other cases have reemphasized the Fifteenth Amendment's specific grant of this new constitutional right.2 Not content to rest congressional power to protect this new constitutional right on the necessary and proper clause of the Constitution, the Fifteenth Amendment's framers added § 2, reading: 23 'The Congress shall have power to enforce this article by appropriate legislation.' 24 And Mr. Justice Miller speaking for this Court declared that the Amendment's granted right to be free from racial discrimination '* * * should be kept free and pure by congressional enactments whenever that is necessary.' Ex parte Yarbrough, 110 U.S. 651, 665, 4 S.Ct. 152, 159, 28 L.Ed. 274. See also United States v. Reese, supra, 92 U.S. at page 218, 23 L.Ed. 563. And see Mr. Justice Bradley's opinion on circuit in United States v. Cruikshank, Fed.Cas.No.14,897, 1 Woods 308, 314—316, 320 323. Acting pursuant to the power granted by the second section of the Fifteenth Amendment Congress in 1870 provided as follows: 25 'All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.' 8 U.S.C. § 31, 8 U.S.C.A. § 31. 26 The Amendment, the congressional enactment and the cases make explicit the rule against racial discrimination in the conduct of elections. Together they show the meaning of 'elections.' Clearly the Amendment includes any election in which public issues are decided or public officials selected.3 Just as clearly the Amendment excludes social or business clubs. And the statute shows the congressional mandate against discrimination whether the voting on public issues and officials is conducted in community, state or nation. Size is not a standard. 27 It is significant that precisely the same qualifications as those prescribed by Texas entitling electors to vote at county-operated primaries are adopted as the sole qualifications entitling electors to vote at the county-wide Jaybird primaries with a single proviso—Negroes are excluded. Everyone concedes that such a proviso in the county-operated primaries would be unconstitutional. The Jaybird Party thus brings into being and holds precisely the kind of election that the Fifteenth Amendment seeks to prevent. When it produces the equivalent of the prohibited election, the damage has been done. 28 For a state to permit such a duplication of its election processes is to permit a flagrant abuse of those processes to defeat the purposes of the Fifteenth Amendment. The use of the county-operated primary to ratify the result of the prohibited election merely compounds the offense. It violates the Fifteenth Amendment for a state, by such circumvention, to permit within its borders the use of any device that produces an equivalent of the prohibited election. 29 The only election that has counted in this Texas county for more than fifty years has been that held by the Jaybirds from which Negroes were excluded. The Democratic primary and the general election have become no more than the perfunctory ratifiers of the choice that has already been made in Jaybird elections from which Negroes have been excluded. It is immaterial that the state does not control that part of this elective process which it leaves for the Jaybirds to manage. The Jaybird primary has become an integral part, indeed the only effective part, of the elective process that determines who shall rule and govern in the county. The effect of the whole procedure, Jaybird primary plus Democratic primary plus general election, is to do precisely that which the Fifteenth Amendment forbids—strip Negroes of every vestige of influence in selecting the officials who control the local county matters that intimately touch the daily lives of citizens. 30 We reverse the Court of Appeals' judgment reversing that of the District Court. We affirm the District Court's holding that the combined Jaybird- Democratic-general election machinery has deprived these petitioners of their right to vote on account of their race and color. The case is remanded to the District Court to enter such orders and decrees as are necessary and proper under the jurisdiction it has retained under 28 U.S.C. § 2202, 28 U.S.C.A. § 2202. In exercising this jurisdiction, the Court is left free to hold hearings to consider and determine what provisions are essential to afford Negro citizens of Fort Bend County full protection from future discriminatory Jaybird-Democratic-general election practices which deprive citizens of voting rights because of their color. 31 Reversed and remanded. 32 Mr. Justice FRANKFURTER. 33 Petitioners are Negroes who claim that they and all Negroes similarly situated in Fort Bend County, Texas, are denied all voice in the primary elections for county offices by the activities of respondent association, the Jaybird Democratic Association. The Jaybird Association was organized in 1889 and from that time until the present has selected, first in mass meetings but for some time by ballot of its members, persons whom the organization indorses for election in the Democratic primary for county office. The Association has never permitted Negroes to participate in its selection of the candidates to be indorsed; balloting is open only to all white citizens of the county qualified under State law to vote. The District Court granted a declaratory judgment that Negroes in the county be allowed to participate in the balloting of the Association. The Court of Appeals reversed, saying that although the white voters in the county are 'vainly holding' to 'outworn and outmoded' (193 F.2d 605) practices, the action of the Association was not 'action under color of state law' and therefore not in violation of federal law. 34 The evidence, summarized by formal stipulation, shows that all rules of the Association are made by its members themselves or by its Executive Committee. Membership, defined by the rules of the Association, consists of the entire white voting population as shown in poll lists prepared by the county. The time of balloting, in what are called the Jaybird primaries, is set by the Executive Committee of the Association for a day early in May of each election year. The expenses of these primaries, the officiating personnel, the balloting places, the determination of the winner all aspects of these primaries are exclusively controlled by the Association. The balloting rules in general follow those prescribed by the State laws regulating primaries. See Vernon's Tex.Stat.1948 (Rev.Civ.Stat.) Tit. 50, c. 13, now revised, 9 Vernon's Tex.Civ.Stat., 1952, c. 13. But formal State action, either by way of legislative recognition or official authorization, is wholly wanting. 35 The successful candidates in the Jaybird primaries, in formal compliance with State rules in that regard, file individually as candidates in the Democratic primary held on the fourth Saturday in July. No mention is made in the filing or in the listing of the candidates on the Democratic primary ballot that they are the Jaybird indorsees. That fact is conveyed to the public by word of mouth, through newspapers, and by other private means. There is no restriction on filing by anyone else as a candidate in the Democratic primary, nor on voting by Negroes in that official primary. 36 For the sixty years of the Association's existence, the candidate ultimately successful in the Democratic primary for every county-wide office was the man indorsed by the Jaybird Association. Indeed, other candidates almost never file in the Democratic primary. This continuous success over such a period of time has been the result of action by practically the entire qualified electorate of the county, barring Negroes. 37 This case is for me by no means free of difficulty. Whenever the law draws a line between permissive and forbidden conduct cases are bound to arise which are not obviously on one side or the other. These dubious situations disclose the limited utility of the figure of speech, a 'line,' in the law. Drawing a 'line' is necessarily exercising a judgment, however confined the conscientious judgment may be within the bounds of constitutional and statutory provisions, the course of decisions, and the presuppositions of the judicial process. If 'line' is in the main a fruitful tool for dividing the sheep from the goats, it must not be forgotten that since the 'line' is figurative the place of this or that case in relation to it cannot be ascertained externally but is a matter of the mind. 38 Close analysis of what it is that the Fifteenth Amendment prohibits must be made before it can be determined what the relevant line is in the situation presented by this case. The Fifteenth Amendment, not the Fourteenth, outlawed discrimination on the basis of race or color with respect to the right to vote. Concretely, of course, it was directed against attempts to bar Negroes from having the same political franchise as white folk. 'The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.' U.S.Const., Amend. XV, § 1. The command against such denial or abridgment is directed to the United States and to the individual States. Therefore, violation of this Amendment and the enactments passed in enforcement of it must involve the United States or a State. In this case the conduct that is assailed pertains to the election of local Texas officials. To find a denial or abridgment of the guaranteed voting right to colored citizens of Texas solely because they are colored, one must find that the State has had a hand in it. 39 The State, in these situations, must mean not private citizens but those clothed with the authority and the influence which official position affords. The application of the prohibition of the Fifteenth Amendment to 'any State' is translated by legal jargon to read 'State action.' This phrase gives rise to a false direction in that it implies some impressive machinery or deliberative conduct normally associated with what orators call a sovereign state. The vital requirement is State responsibility—that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme by which colored citizens are denied voting rights merely because they are colored. 40 As the action of the entire white voting community, the Jaybird primary is as a practical matter the instrument of those few in this small county who are politically active—the officials of the local Democratic party and, we may assume, the elected officials of the county. As a matter of practical politics, those charged by State law with the duty of assuring all eligible voters an opportunity to participate in the selection of candidates at the primary—the county election officials who are normally leaders in their communities—participate by voting in the Jaybird primary. They join the white voting community in proceeding with elaborate formality, in almost all respects parallel to the procedures dictated by Texas law for the primary itself, to express their preferences in a wholly successful effort to withdraw significance from the State-prescribed primary, to subvert the operation of what is formally the law of the State for primaries in this county. 41 The legal significance of the Jaybird primary must be tested against the cases which, in an endeavor to screen what is effectively an exertion of State authority in preventing Negroes from exercising their constitutional right of franchise, have pierced the various manifestations of astuteness. In the last of the series, Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, we held that the State regulation there of primaries conducted by a political party made the party 'required to follow these legislative directions an agency of the state in so far as it determines the participants in a primary election.' Id., 321 U.S. at page 663, 64 S.Ct. at page 765. Alternative routes have been suggested for concluding that the Jaybird primary is 'so slight a change in form', id., 321 U.S. at page 661, 64 S.Ct. at page 764, that the result should not differ in substance from that of Smith v. Allwright. The District Court found that the Jaybird Association is a political party within the meaning of the Texas legislation regulating the administration of primaries by political parties; it said that the Association could not avoid that result by holding its primary on a different date and by utilizing different methods than those prescribed by the statutes. 42 Whether the Association is a political party regulated by Texas and thus subject to a duty of nondiscrimination, or is, as it claims, clearly not a party within the meaning of that legislation, failing as it does to attempt to comply with a number of the State requirements, particularly as to the date of the 'primary,' is a question of State law not to be answered in the first instance by a federal court. We do not know what the Texas Supreme Court would say. An operation such as the Jaybird primary may be found by the Texas court to satisfy Texas law although it does not come within the formal definition; it may so be found because long-accepted customs and the habits of a people may generate 'law' as surely as a formal legislative declaration, and indeed, sometimes even in the face of it. See, e.g., Nashville, Chattanooga & St. Louis R. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254. But even if the Jaybird Association is a political party, a federal court cannot say that a political party in Texas is to hold a primary open to all on a day other than that fixed by Texas statute. This would be an inadmissible intervention of the federal judiciary into the political process of a State. If such a remedy is to be derived from a finding that the Jaybird Association is a political party, it is one that must be devised by the Texas courts. For the same reason, we cannot say that the Jaybird primary is a 'primary' within the meaning of Texas law and so regulated by Texas law that Smith v. Allwright would apply. 43 But assuming, as I think we must, that the Jaybird Association is not a political party holding a State-regulated primary, we should nonetheless decide this case against respondents on the ground that in the precise situation before us the State authority has come into play. 44 The State of Texas has entered into a comprehensive scheme of regulation of political primaries, including procedures by which election officials shall be chosen. The county election officials are thus clothed with the authority of the State to secure observance of the State's interest in 'fair methods and a fair expression' of preferences in the selection of nominees. Cf. Waples v. Marrast, 108 Tex. 5, 12, 184 S.W. 180, 183, L.R.A. 1917A, 253. If the Jaybird Association, although not a political party, is a device to defeat the law of Texas regulating primaries, and if the electoral officials, clothed with State power in the county, share in that subversion, they cannot divest themselves of the State authority and help as participants in the scheme. Unlawful administration of a State statute fair on its face may be shown 'by extrinsic evidence showing a discriminatory design to favor on individual or class over another not to be inferred from the action itself,' Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497; here, the county election officials aid in this subversion of the State's official scheme of which they are trustees, by helping as participants in the scheme. 45 This is not a case of occasional efforts to mass voting strength. Nor is this a case of boss-control, whether crudely or subtly exercised. Nor is this a case of spontaneous efforts by citizens to influence votes or even continued efforts by a fraction of the electorate in support of good government. This is a case in which county election officials have participated in and condoned a continued effort effectively to exclude Negroes from voting. Though the action of the Association as such may not be proscribed by the Fifteenth Amendment, its role in the entire scheme to subvert the operation of the official primary brings it 'within reach of the law. * * * (T)hey are bound together as the parts of a single plan. The plan may make the parts unlawful.' Mr. Justice Holmes, speaking for the Court, in Swift and Company v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518. 46 The State here devised a process for primary elections. The right of all citizens to share in it, and not to be excluded by unconstitutional bars, is emphasized by the fact that in Texas nomination in the Democratic primary is tantamount to election. The exclusion of the Negroes from meaningful participation in the only primary scheme set up by the State was not an accidental, unsought consequence of the exercise of civic rights by voters to make their common viewpoint count. It was the design, the very purpose of this arrangement that the Jaybird primary in May exclude Negro participation in July. That it was the action in part of the election officials charged by Texas law with the fair administration of the primaries, brings it within the reach of the law. The officials made themselves party to means whereby the machinery with which they are entrusted does not discharge the functions for which it was designed. 47 It does not follow, however, that the relief granted below was proper. Since the vice of this situation is not that the Jaybird primary itself is the primary discriminatorily conducted under State law but is that the determination there made becomes, in fact, the determination in the Democratic primary by virtue of the participation and acquiescence of State authorities, a federal court cannot require that petitioners be allowed to vote in the Jaybird primary. The evil here is that the State, through the action and abdication of those whom it has clothed with authority, has permitted white voters to go through a procedure which predetermines the legally devised primary. To say that Negroes should be allowed to vote in the Jaybird primary would be to say that the State is under a duty to see to it that Negroes may vote in that primary. We cannot tell the State that it must participate in and regulate this primary; we cannot tell the State what machinery it will use. But a court of equity can free the lawful political agency from the combination that subverts its capacity to function. What must be done is that this county be rid of the means by which the unlawful 'usage,' R.S. § 2004, 8 U.S.C. § 31, 8 U.S.C.A. § 31, in this case asserts itself. 48 Mr. Justice CLARK, with whom the CHIEF JUSTICE, Mr. Justice REED, and Mr. Justice JACKSON join, concurring. 49 The issue is whether the Jaybird Democratic Association of Fort Bend County, Texas, by excluding Negroes from its primaries has denied to Negro citizens of the county a right to vote secured by the Fifteenth Amendment. On March 16, 1950, petitioners on behalf of themselves and similarly situated Negro citizens in Fort Bend County instituted a class action against respondents individually and as officers of the Jaybird Democratic Association.1 The complaint, in substance, charged that the Negro petitioners were duly qualified voters of the State of Texas who for many years and solely because of their race and color had been denied the right to vote in the primaries of the Association, a political party. Contending that these practices transgressed the Constitution and laws of the United States,2 petitioners sought declaratory and injunctive relief.3 Respondents insisted that the Jaybird Democratic Association was not a political party regulated by Texas statutes but merely a private voluntary group. The District Court held that the Jaybird Democratic Association was a political party, and ruled its discriminatory exclusion of Negroes from the primary invalid.4 Judgment accordingly entered declared petitioners legally entitled to vote in the Jaybird primary. The District Court refused an injunction but retained jurisdiction to grant further appropriate relief.5 The Court of Appeals reversed; in its view the discriminatory exclusions were not reached by the terms of the Constitution and congressional enactments.6 50 An old pattern in new guise is revealed by the record.7 The Jaybird Democratic Association of Fort Bend County was founded in 1889 to promote 'good government' in the post-Reconstruction period. During its entire life span the Association has restricted membership to whites. In earlier years, the members at mass meetings determined their choice of candidates to support at forthcoming official elections. Subsequently the Association developed a system closely paralleling the structure of the Democratic Party. The Association is governed by an Executive Committee of twenty-two persons, one from each voting precinct in the county. The Committee in each election year sets the date of the Jaybird primary for selecting by ballot the candidates to be endorsed by the Association for public office in the county. The machinery of the Jaybird Democratic Association primary now differs from the state-regulated Democratic Party primary mainly in the Association's prohibition of more than two consecutive terms for office holders, the absence of a pledge on the ballot at the Jaybird primary, and the Association's practice of not officially filing as a ticket the names of candidates successful in its balloting. And for more than a half century the Association has adhered to its guiding principle: to deny the Negro voters of Fort Bend County any effective voice in their government. 51 The Court of Appeals, in reversing the District Court, largely relied on what it deemed 'the settled course of decision culminating in Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253, that it was not against individual, but against state, action that the Fourteenth and Fifteenth Amendments and 8 U.S.C.A. §§ 43 and 47 (8 U.S.C.A. §§ 43, 47), were, and are, directed.'8 But Collins dealt not with racial discrimination at the ballot box but merely 'a lawless political brawl, precipitated by a handful of white citizens against other white citizens.' 341 U.S. at page 662, 71 S.Ct. at page 942. In any event, Collins adjudicated that Congress in the narrow class of conspiracies defined by the Civil Rights Statutes had not included the conspiracy charged in that particular complaint; expressly refraining from constitutional questions, ibid., that case cannot be held controlling here.9 52 In our view, the Court of Appeals has misconceived the thrust of our recent decisions. The Fifteenth Amendment secures the franchise exercised by citizens of the United States against abridgment by any state on the basis of race or color. In Smith v. Allwright, 1944, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, this Court held that the Democratic Party of itself, and perforce any other political party, is prohibited by that Amendment from conducting a racially discriminatory primary election. By the rule of that case, any 'part of the machinery for choosing officials' becomes subject to the Constitution's restraints. Id., 321 U.S. at page 664, 64 S.Ct. at page 765. There, as here, we dealt with an organization that took the form of 'voluntary association' of unofficial character. But because in fact it functioned as a part of the state's electoral machinery, we held it controlled by the same constitutional limitations that ruled the official general election. 53 We agree with Chief District Judge Kennery that the Jaybird Democratic Association is a political party10 whose activities fall within the Fifteenth Amendment's self-executing ban. See Guinn v. United States, 1915, 238 U.S. 347, 363, 35 S.Ct. 926, 930, 59 L.Ed. 1340; Myers v. Anderson, 1915, 238 U.S. 368, 379 380, 35 S.Ct. 932, 934—935, 59 L.Ed. 1349.11 Not every private club, association or league organized to influence public candidacies or political action must conform to the Constitution's restrictions on political parties. Certainly a large area of freedom permits peaceable assembly and concerted private action for political purposes to be exercised separately by white and colored citizens alike. More, however, is involved here. 54 The record discloses that the Jaybird Democratic Association operates as part and parcel of the Democratic Party, an organization existing under the auspices of Texas law.12 Each maintains the same basic qualification for membership: eligibility to vote under Texas law. Although the state Democratic Party in Texas since Smith v. Allwright, supra, no longer can restrict its membership to whites, the Jaybird Democratic Association bars Negroes from its ranks. In May of each election year it conducts a full-scale white primary in which each candidate campaigns for his candidacy subject to the action of that primary and the Democratic primary of July, linking the two primaries together. After gaining the Jaybird Democratic Association's endorsement, the announced winners after full publicity then file in the July Democratic primary. The record reveals that 3,910 eligible voters were listed in Fort Bend County in the presidential year 1944; though only 2,032 participated in the July primary under the Democratic banner, 3,790 members voted in the May balloting of the Jaybird Democratic Association. In 1946, an off-year for presidential balloting, eligible voters numbered 4,460; the Association's May primary polled 3,309 votes, and the Democratic July primary counted but 2,996. And while the lists in 1948, again a presidential year, show only 3,856 eligible electors in the County, the Jaybird primary mustered a total vote of 4,055, compared with 3,108 in the primary voting in July. Significantly, since 1889 the winners of the Jaybird Democratic Association balloting, with but a single exception shown by this record,13 ran unopposed and invariably won in the Democratic July primary and the subsequent general elections for county-wide office. 55 Quite evidently the Jaybird Democratic Association operates as an auxiliary of the local Democratic Party organization, selecting its nominees and using its machinery for carrying out an admitted design of destroying the weight and effect of Negro ballots in Fort Bend County. To be sure, the Democratic primary and the general election are nominally open to the colored elector. But his must be an empty vote case after the real decisions are made. And because the Jaybird-indorsed nominee meets no opposition in the Democratic primary, the Negro minority's vote is nullified at the sole stage of the local political process where the bargaining and interplay of rival political forces would make it count. 56 The Jaybird Democratic Association device, as a result, strikes to the core of the electoral process in Fort Bend County. Whether viewed as a separate political organization or as an adjunct of the local Democratic Party, the Jaybird Democratic Association is the decisive power in the county's recognized electoral process. Over the years its balloting has emerged as the locus of effective political choice. Consonant with the broad and lofty aims of its Framers, the Fifteenth Amendment, as the Fourteenth, 'refers to exertions of state power in all forms.' Shelley v. Kramer, 1948, 334 U.S. 1, 20, 68 S.Ct. 836, 845, 92 L.Ed. 1161. Accordingly, when a state structures its electoral apparatus in a form which devolves upon a political organization the uncontested choice of public officials, that organization itself, in whatever disguise, takes on those attributes of government which draw the Constitution's safeguards in play. Smith v. Allwright, supra, 321 U.S. at page 664, 64 S.Ct. at page 765; cf. United States v. Classic, 1941, 313 U.S. 299, 324, 61 S.Ct. 1031, 1042, 85 L.Ed. 1368; Lane v. Wilson, 1939, 307 U.S. 368, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281. 57 In sum, we believe that the activities of the Jaybird Democratic Association fall within the broad principle laid down in Smith v. Allwright, supra. For that reason we join the judgment of the Court. 58 Mr. Justice MINTON, dissenting. 59 I am not concerned in the least as to what happens to the Jaybirds or their unworthy scheme. I am concerned about what this Court says is state action within the meaning of the Fifteenth Amendment to the Constitution. For, after all, this Court has power to redress a wrong under that Amendment only if the wrong is done by the State. That has been the holding of this Court since the earliest cases. The Chief Justice for a unanimous Court in the recent case of Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161, stated the law as follows: 60 'Since the decision of this Court in the Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, the principle has become firmly embedded in our constitutional law that 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. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.' (Emphasis supplied.)1 61 As I understand Mr. Justice BLACK's opinion, he would have this Court redress the wrong even if it was individual action alone. I can understand that praiseworthy position, but it seems to me it is not in accord with the Constitution. State action must be shown. 62 Mr. Justice FRANKFURTER recognizes that it must be state action but he seems to think it is enough to constitute state action if a state official participates in the Jaybird primary. That I cannot follow. For it seems clear to me that everything done by a person who is an official is not done officially and as a representative of the State. However, I find nothing in this record that shows the state or county officials participating in the Jaybird primary. 63 Mr. Justice CLARK seems to recognize that state action must be shown. He finds state action in assumption, not in facts. This record will be searched in vain for one iota of state action sufficient to support an anemic inference that the Jaybird Association is in any way associated with or forms a part of or cooperates in any manner with the Democratic Party of the County or State, or with the State. It calls itself the Jaybird Democratic Association because its interest is only in the candidates of the Democratic Party in the county, a position understandable in Texas. It is a gratuitous assumption on the part of Mr. Justice CLARK that: 'Quite evidently the Jaybird Democratic Association operates as an auxiliary of the local Democratic Party organization, selecting its nominees and using its machinery for carrying out an admitted design of destroying the weight and effect of Negro ballots in Fort Bend County.' The following stipulation in the record shows the unsubstantiality of that statement just quoted from Mr. Justice CLARK's opinion. I quote the stipulation: 64 'There is no compulsion upon any person who receives the indorsement of the Jaybird Democratic Association of Fort Bend County, Texas, for a particular office, to run for that office or any other office. In the event such indorsee of the Association does desire to run for such office he may do so; but if he does so run for such office he must himself file his application with the Executive Chairman or Committee of the Democratic Party for the position on the Democratic Party ballot for the July primary of such Democratic Party, and must himself pay the fee as provided by law. Neither the Jaybird Democratic Association nor its Executive Committee files an application with the Democratic Party Executive Committee or Chairman that the Jaybird Democratic Association nominee be placed on the ballot for the Democratic Party July primary election. 65 There is nothing on the ballot of the Democratic Party primary to indicate that any person appearing thereon does or does not have the indorsement of the Jaybird Democratic Association. 66 'The name of the applicant for a place on the Democratic Party ballot is not placed on said ballot unless he complies with the laws of the State of Texas, even though such applicant were indorsed by the Jaybird Democratic Association; and every qualified applicant who makes the required application to the Democratic Executive Committee and pays the requisite fee is placed on the Democratic Party primary ballot for the July Democratic primary though not indorsed by the Jaybird Democratic Association. 67 'No member of the Negro race, nor any other person qualified under the laws of the State of Texas to become a candidate, has been refused a place on the Democratic Party primary ballot for Fort Bend County, Texas, by the Democratic Party.' 68 Neither is there any more evidence that the Jaybird Association avails itself of or conforms in any manner to any law of the State of Texas. As to the Jaybird Association's relation to the State, I again quote the stipulation in the record: 69 'There is no political organization in Fort Bend County, Texas, by the official name or designation 'Jaybird Party'. At all times since 1889, however, there has been and still is, an organization in Fort Bend County, Texas, by the name of 'Jaybird Democratic Association of Fort Bend County, Texas'. Said Association, however, has not since 1938, and it does not: (a) Have a State organization; (b) Follow or attempt to comply with any of the provisions of Article 3163 of the Revised Statutes of Texas, or of any other statutes of the State of Texas with reference to primary elections or general elections; (c) Hold any convention or 'primary election' on the legal primary election day, to-wit: The fourth Saturday in July or the fourth Saturday in August, of any year; (d) Hold any primary convention in any precinct on the Saturday preceding a legal primary election day; (e) By the chairman of a county committee, or otherwise, certify to the County Clerk of Fort Bend County, Texas, or to the County Judge thereof, or to any official committee or other representative of the Democratic or Republican party, any nominations or indorsements made by the Association; (f) Have, or cause to be, printed in a separate column headed by the Association name any nominations on any official ballot used, or for use in, a primary or general election held on a legal primary election day or general election day; (nor does the name, Jaybird Democratic Association of Fort Bend County, Texas, or any part or indication thereof, appear on any ballot in any election other than the primaries, or other special voting occasions, held by the Association itself and alone); (g) Make, or cause to be made, a written application to the County Judge for such printing, signed and sworn to by 3% of the entire vote cast in Fort Bend County at the last preceding general election. 70 'No officer nor Committee of such Association certifies the result of the Association membership vote, nor any nominations of the Association, to the County Clerk of Fort Bend County, Texas, nor to the Democratic Party Executive Committee nor to the Committee or official of any party with a state-wide organization. 71 'In the last few years some of the members of the Negro race have offered to vote in the Democratic Party primaries and no member of the Negro race who had qualified under the laws of the State of Texas to vote has been refused the right to vote. Some of the members of the Negro race have offered to vote in a general election in Fort Bend County, Texas, and no member of the Negro race qualified to vote has been refused a vote. 72 'The Jaybird Democratic Association of Fort Bend County, Texas, is not, and does not have, a state organization, but limits its May and June Association primaries to only the county and precinct offices, except that the membership of the Association does vote its preference for the office of District Clerk in Fort Bend County. 73 'The persons seeking the indorsement of the Jaybird Democratic Association of Fort Bend County Texas, at its May or June Primaries are not required by the Association to file any expense account and do not file expense accounts with any State or local official, Committee or Board.' 74 These stipulations from the record show the complete absence of any compliance with the state law or practice, or cooperation by or with the State. Even if it be said to be a political organization, the Jaybird Association avails itself of no state law open to political organizations, such as Art. 3163. 75 However, its action is not forbidden by the law of the State of Texas. Does such failure of the State to act to prevent individuals from doing what they have the right as individuals to do amount to state action? I venture the opinion it does not. 76 Mr. Justice CLARK's opinion agrees with District Judge Kennerly that this Jaybird Democratic Association is a political party whose activities fall within the Fifteenth Amendment's self-executing ban. In the same paragraph, he admits that not all meetings for political action come under the constitutional ban. Surely white or colored members of any political faith or economic belief may hold caucuses. It is only when the State by action of its legislative bodies or action of some of its officials in their official capacity cooperates with such political party or gives it direction in its activities that the Federal Constitution may come into play. A political organization not using state machinery or depending upon state law to authorize what it does could not be within the ban of the Fifteenth Amendment. As the stipulation quoted shows, the Jaybird Association did not attempt to conform or in any way to comply with the statutes of Texas covering primaries. No action of any legislative or quasi-legislative body or of any state official or agency ever in any manner denied the vote to Negroes, even in the Jaybird primaries. 77 So it seems to me clear there is no state action, and the Jaybird Democratic Association is in no sense a part of the Democratic Party. If it is a political organization, it has made no attempt to use the State, or the State to use it, to carry on its poll. 78 Rice v. Elmore, 4 Cir., 165 F.2d 387, is cited as authority for the position of the petitioners. In that case, South Carolina had repealed all its laws relating to the conduct of primaries. The only primary conducted was by the Democratic Party of South Carolina in accordance with rules adopted by the Party. It was stipulated on the trial of that case that the Democratic Party 'conducts nominating primaries and thereafter prints its ballots for use in the General Elections with the names of its nominees thereon which ballots are distributed by party officials and placed at the General Election precincts in South Carolina for use by any electors who choose to use such ballow in voting in any such General Election in South Carolina.' The District Court specifically found in Finding 19: 'There is no General Election ballot in South Carolina. The only printed ballots available in General Elections in South Carolina are ballots prepared by the political parties giving only the names of their respective candidates.' Finding 14 stated: 'During the past 25 years the Democratic Party of South Carolina has been the only political party in South Carolina which has held state-wide primaries for nomination of candidates for Federal and State offices.' 79 Thus it will be seen that there the Democratic Party furnished not only the candidate in the general election, but it also furnished the only ballot one could vote in that election. So the State in the general election accepted the ballot of the Democratic Party as its official ballot, and on that ballot no Negro had been permitted to vote. Clearly, the State adopted the Democratic Party's procedure as its action. The State and the Democratic Party effectively cooperated to carry on this two-step election procedure. 80 No such action is taken by the Jaybird Association. It neither files, certifies, nor supplies anything for the primary or election. The winner of the poll in the Jaybird Association contest files in the Democratic primary, where he may and sometimes has received opposition, and successful opposition, in precinct contests for County Commissioner, Justice of the Peace and Constable. There is no rule of the Jaybird Association that requires the successful party in its poll to file in the Democratic primary or elsewhere. It is all individual, voluntary action. Neither the State nor the Democratic Party avails itself of the action of or cooperates in any manner with the Jaybird Association. 81 Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, is in no manner controlling. In that case, the State had set up the machinery for the Democratic Party to conduct its primary. The State of Texas made the Democratic Party its agent for the conducting of a Democratic primary. Of course, the Democratic Party could not run that primary, set up under the auspices of the State, in a manner to exclude citizens of Texas therefrom because of their race. That such is the basis of the Court's opinion in Smith v. Allwright, supra, is apparent from the following quotation taken from that case: 82 'Primary elections are conducted by the party under state statutory authority. The county executive committee selects precinct election officials and the county, district or state executive committees, respectively, canvass the returns. These party committees or the state convention certify the party's candidates to the appropriate officers for inclusion on the official ballot for the general election. No name which has not been so certified may appear upon the ballot for the general election as a candidate of a political party. * * * 83 'We think that this statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the state in so far as it determines the participants in a primary election. The party takes its character as a state agency from the duties imposed upon it by state statutes; the duties do not become matters of private law because they are performed by a political party.' 321 U.S. 649, 663, 64 S.Ct. 757, 764. (Emphasis supplied.) This case does not hold that a group of Democrats, white, black, male, female, native-born or foreign, economic royalists or workingmen, may not caucus or conduct a straw vote. What the Jaybird Association did here was to conduct as individuals, separate and apart from the Democratic Party or the State, a straw vote as to who should receive the Association's endorsement for county and precinct offices. It has been successful in seeing that those who receive its endorsement are nominated and elected. That is true of concerted action by any group. In numbers there is strength. In organization there is effectiveness. Often a small minority of stockholders control a corporation. Indeed, it is almost an axiom of corporate management that a small, cohesive group may control, especially in the larger corporations where the holdings are widely diffused. 84 I do not understand that concerted action of individuals which is successful somehow becomes state action. However, the candidates endorsed by the Jaybird Association have several times been defeated in primaries and elections. Usually but not always since 1938, only the Jaybird-endorsed candidate has been on the Democratic official ballot in the County. 85 In the instant case, the State of Texas has provided for elections and primaries. This is separate and apart and wholly unrelated to the Jaybird Association's activities. Its activities are confined to one County where a group of citizens have appointed themselves the censors of those who would run for public offices. Apparently so far they have succeeded in convincing the voters of this County in most instances that their supported candidates should win. This seems to differ very little from situations common in many other places far north of the Mason-Dixon line, such as areas where a candidate must obtain the approval of a religious group. In other localities, candidates are carefully selected by both parties to give proper weight to Jew, Protestant and Catholic, and certain posts are considered the sole possession of certain ethnic groups. The propriety of these practices is something the courts sensibly have left to the good or bad judgment of the electorate. It must be recognized that elections and other public business are influenced by all sorts of pressures from carefully organized groups. We have pressure from labor unions, from the National Association of Manufacturers, from the Silver Shirts, from the National Association for the Advancement of Colored People, from the Ku Klux Klan and others. Far from the activities of these groups being properly labeled as state action, under either the Fourteenth or the Fifteenth Amendment, they are to be considered as attempts to influence or obtain state action. 86 The courts do not normally pass upon these pressure groups, whether their causes are good or bad, highly successful or only so-so. It is difficult for me to see how this Jaybird Association is anything but such a pressure group. Apparently it is believed in by enough people in Fort Bend County to obtain a majority of the votes for its approved candidates. This differs little from the situation in many parts of the 'Bible Belt' where a church stamp of approval or that of the Anti-Saloon League must be put on any candidate who does not want to lose the election. 87 The State of Texas in its elections and primaries takes no cognizance of this Jaybird Association. The State treats its decisions apparently with the same disdain as it would the approval or condemnation of judicial candidates by a bar association poll of its members. 88 In this case the majority have found that this pressure group's work does constitute state action. The basis of this conclusion is rather difficult to ascertain. Apparently it derives mainly from a dislike of the goals of the Jaybird Association. I share that dislike. I fail to see how it makes state action. I would affirm. 1 It has been suggested that there is a crucial distinction between this case and the South Carolina primary cases. There, it is said, the names of Democratic nominees were placed on the state's general election ballots as Democratic nominees. Here Jaybird nominees are not put on any ballot as Jaybird nominees; they enter their own names as candidates in the Democratic primary. This distinction is not one of substance but of form, and a statement of this Court in Smith v. Allwright, supra, 321 U.S. at page 661, 64 S.Ct. at page 764, seems appropriate: 'Such a variation in the result from so slight a change in form influences us to consider anew the legal validity of the distinction which has resulted in barring Negroes from participating in the nominations of candidates of the Democratic party in Texas.' (Emphasis supplied.) The same may be said about the attempted distinction between the 'two-step' exclusion process in South Carolina and the 'three-step' exclusion process in Texas. 2 'In United States v. Reese, supra (92 U.S.) 214 (23 L.Ed. 563) we hold that the fifteenth amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship; but that exemption from discrimination in the exercise of that right on account of race, &c, is. The right to vote in the States comes from the States; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States; but the last has been.' United States v. Cruikshank, 92 U.S. 542, 555—556, 23 L.Ed. 588. To the same effect, see Ex parte Yarbrough, 110 U.S. 651, 664—665, 4 S.Ct. 152, 158, 159, 28 L.Ed. 274; Logan v. United States, 144 U.S. 263, 286, 12 S.Ct. 617, 623, 36 L.Ed. 429. The Amendment has been held 'self-executing.' See Guinn v. United States, 238 U.S. 347, 362—363, 35 S.Ct. 926, 930, 59 L.Ed. 1340. 3 'We may mystify any thing. But if we take a plain view of the words of the Constitution, and give to them a fair and obvious interpretation, we cannot fail in most cases of coming to clear understanding of its meaning. We shall not have far to seek. We shall find it on the surface, and not in the profound depths of speculation.' Ex parte Siebold, 100 U.S. 371, 393, 25 L.Ed. 717. 1 See Fed.Rules Civ.Proc. 23, 28 U.S.C.A. 2 Petitioners mainly rested their claims on the Fourteenth and Fifteenth Amendments, and 8 U.S.C. § 31, 8 U.S.C.A. § 31. Article XIV. 'Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' Article XV. 'Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. 'Section 2. The Congress shall have power to enforce this article by appropriate legislation.' 8 U.S.C. § 31, 8 U.S.C.A. § 31: 'All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.' 3 28 U.S.C. (Supp. V) §§ 1331, 2201, 28 U.S.C.A. §§ 1331, 2201. Petitioners abandoned a claim to money damages, apparently grounded on 8 U.S.C. §§ 43, 47, 8 U.S.C.A. §§ 43, 47. 4 D.C.S.D.Tex.1950, 90 F.Supp. 595. The District Judge supported his conclusions by reference to Art. 3163, Vernon's Texas Civil Statutes: 'Art. 3163. Parties without State organization 'Any political party without a State organization desiring to nominate candidates for county and precinct offices only may nominate such candidates therefor under the provisions of this title by primary elections or by a county convention held on the legal primary election day, which convention shall be composed of delegates from various election precincts in said county, elected therein at primary conventions held in such precincts between the hours of eight a.m. and ten p.m. of the preceding Saturday. All nominations made by any such parties shall be certified to the county clerk by the chairman of the county committee of such party, and, after taking the same course as nominations of other parties so certified, shall be printed on the official ballot in a separate column, headed by the name of the party; provided, a written application for such printing shall have been made to the county judge, signed and sworn to by three per cent of the entire vote cast in such county at the last general election.' This provision has been substantially recodified as Art. 13.54, Vernon's Texas Election Code (1952). 5 'Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.' 28 U.S.C. (Supp. V) § 2202, 28 U.S.C.A. § 2202. The District Judge refused injunctive relief because the affairs of the Jaybird Democratic Association are controlled by an Executive Committee of twenty-two persons; the four named defendants before the court had not the power to permit petitioners to vote in the Jaybird balloting. 6 5 Cir., 1952, 193 F.2d 600. 7 Cf. Nixon v. Herndon, 1927, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Nixon v. Condon, 1932, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984; Smith v. Allwright, 1944, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987. 8 193 F.2d at page 602. And see id., 193 F.2d at page 605. 9 Since in this case we deem the activities of the Jaybird Democratic Association unlawful under the independent reach of the Fifteenth Amendment, the applicability of 8 U.S.C. § 31, 8 U.S.C.A. § 31, need not be considered now. See United States v. Reese, 1876, 92 U.S. 214, 218, 23 L.Ed. 563; United States v. Cruikshank, 1876, 92 U.S. 542, 555—556, 23 L.Ed. 588. Cf. James v. Bowman, 1903, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 979, with Ex parte Yarbrough, 1884, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274, and Myers v. Anderson, 1915, 238 U.S. 368, 379, 35 S.Ct. 932, 934, 59 L.Ed. 1349. 10 See Smith v. Allwright, 1944, 321 U.S. 649, 662, 64 S.Ct. 757, 764, 88 L.Ed. 987; Nixon v. Condon, 1932, 286 U.S. 73, 88—89, 52 S.Ct. 484, 487, 76 L.Ed. 984. See note 4, supra. 11 See also Neal v. State of Delaware, 1881, 103 U.S. 370, 389—390, 26 L.Ed. 567; Ex parte Yarbrough, 1884, 110 U.S. 651, 665, 4 S.Ct. 152, 159, 28 L.Ed. 274. 12 The record in this case comprises not only a concise stipulation of facts, but also 43 additional pages of directly relevant testimony. Obviously the whole of the record underlay the determinations of the courts below, and must be considered in an appellate review of their decisions. 13 In 1944, Mr. Charles Schultz emerged victorious from the Jaybird balloting and was indorsed as its candidate for County Judge. In the July Democratic primary, Schultz triumphed by a vote of 2,025 to 1 for Mr. Mike Dornak. Schultz held office for two terms until 1948. In that year, in accord with a Jaybird Association rule prohibiting more than two consecutive terms in office, Mr. Baker received the Jaybird indorsement for the county judgeship. Schultz, however, insisted on running in the Democratic primary; he lost out to Baker by a vote of 2,209 to 803. See R. 34, 79. The record reveals, however, that the Jaybird-indorsed candidates for precinct office were not quite as consistently successful. 1 The Fifteenth Amendment as here involved is also directed at State action only.
12
345 U.S. 507 73 S.Ct. 803 97 L.Ed. 1206 CALLANAN ROAD IMPROVEMENT CO. et al.v.UNITED STATES et al. No. 488. Argued April 8, 1953. Decided May 4, 1953. Rehearing Denied June 8, 1953. See 345 U.S. 978, 73 S.Ct. 1119. Mr. William A. Roberts, Washington, D.C., for appellant. Mr. William J. Hickey, Washington, D.C., for appellees U.S. and I.C.C. Mr. R. Granville Curry, Washington, D.C., for appellee Cornell steamboat co. Mr. Justice MINTON delivered the opinion of the Court. 1 In 1941, one Joseph R. Hutton applied to the Interstate Commerce Commission for a permit to operate as a contract carrier by water between points on Long Island Sound, New York Harbor, the Hudson River, the New York State Barge Canal System, the Niagara River, and contiguous ports. In the alternative, he prayed a certificate of convenience and necessity if he be found to be a common carrier. The application was a 'grandfather' clause proceeding under § 309 of Part III, Water Carriers, of the Interstate Commerce Act, 54 Stat. 941, 49 U.S.C. (1946 ed.) § 909, 49 U.S.C.A. § 909. 2 The Commission, after hearing and investigation, made findings of fact and conclusions of law thereon to the effect that for 37 years Hutton had been in operation; that '(h)e owns and manages 1 steam power boat of about 240 horsepower, and 4 barges, all of which are operated as a unit. The power boat is used to tow the barges but also carries about 150 gross tons of freight. On occasion other barges are rented or chartered for operation in applicant's fleet.' It was further found that during and since 1939 and 1940, 'applicant's operation has been that of a common carrier of commodities generally between points on New York Harbor, the Hudson River below its junction with the New York State Barge Canal, the New York State Barge Canal between the Hudson River and the Niagara River including the Oswego branch, and the Niagara River.' The Commission further found that the applicant was in operation January 1, 1940, the critical date provided in § 309 for 'grandfather' proceedings, and by reason of his long, continuous operation, public convenience and necessity would be served by continuance of such operation, and specifically found: 3 'We find that applicant is a common carrier by water; that public convenience and necessity require operation by applicant as a common carrier in interstate or foreign commerce, of commodities generally, between points on New York Harbor as determined in Ex Parte No. 140, points on the Hudson River below its junction with the New York State Barge Canal, the New York State Barge Canal between the Hudson River and the Niagara River including the Oswego branch, and the Niagara River; that applicant is fit, willing and able properly to perform said transportation; and that applicant is entitled to a certificate authorizing such operation, subject, however, to general conditions which are necessary to carry out, with respect to such operation, the requirement of Part III of the act and the orders, rules, and regulations of the Commission thereunder.' 4 The Commission entered an order on July 17, 1942, effective October 5, 1942, granting the certificate of convenience and necessity to Hutton. This order recited the fact of the above findings and incorporated them by reference. 250 I.C.C. 804. 5 Thus it will be seen that the Commission found the operations of Hutton to be those of a common carrier by water of commodities generally in self-propelled vessels which he owned and which he also used to tow barges he owned, rented, or chartered. There is no finding that his operations included the towing of barges which he did not own, rent, or charter. The certificate was accepted by Hutton, and, as far as appears on this record, he operated under it until March 7, 1944, in the same manner as he had before. 6 On March 7, 1944, the Commission of its own motion opened the record in Hutton's original application and after reconsidering its former findings, specified the type of vessels to be used in the exercise of its authority theretofore granted. 260 I.C.C. 804. The Commission's order of March 7, 1944, in pertinent part reads as follows: 7 'That public convenience and necessity require the continuance of operation by applicant as a common carrier by water, by self-propelled vessels and by non-self-propelled vessels with the use of separate towing vessels in interstate or foreign commerce, in the transportation of commodities generally between points in the area defined by the order of the Commission * * *.' 8 This amended certificate, which limited Hutton to the identical operations he had long carried on and upon which his § 309 rights were authorized, was accepted by him without question, and he continued to operate under it until his death several months later. 9 The Callanan Road Improvement Company, the appellant here, sought to purchase the amended certificate from Hutton's administratrix for operations limited to the Hudson River and New York Harbor. By § 312 of the Interstate Commerce Act, 54 Stat. 944, 49 U.S.C. (1946 ed.) § 912, 49 U.S.C.A. § 912, the Interstate Commerce Commission's authorization is required for such a transfer. An application for approval was filed before the Commission by the appellant and the administrix. After hearing, the Commission by order dated August 18, 1947 (265 I.C.C. 813), authorized the transfer of the amended certificate to the appellant in the following words: 10 'It is further ordered, That, following consummation of the sale to the transferee of the operating rights covered by said amended certificate, said transferee may perform to the extent above described, the water-carrier service heretofore authorized under said amended certificate dated March 7, 1944, in No. W—103.' 11 On February 5, 1948, the Commission issued an amended certificate to the appellant, pursuant to its order of August 18, 1947. Thus, the appellant sought and received a transfer of the amended certificate of March 7, 1944, limited by consent as to waters to be operated upon. 12 On January 5, 1951, the appellant filed a petition with the Commission for interpretation of the amended certificate it had purchased from Hutton's administratrix. Cornell Steamboat Company, engaged only in towing on the waters in question, appeared and offered evidence against the appellant. In this proceeding, the appellant claimed the right under its certificate to engage in towing service as distinguished from freighting service. It is and was the contention of the appellant that under the original certificate issued to Hutton in 1942, the latter was a common carrier of goods generally, and that the limitations or modification of this certificate by the order of the Commission of March 7, 1944, which denied Hutton the right to engage in towing services was unauthorized, and, as transferee, the appellant was entitled to engage in towing service and to promulgate and file tariffs therefor. The Commission after hearing held the appellant was not entitled to engage in the service of towing and cancelled the tariffs filed by the appellant covering towing services. 285 I.C.C. 75. 13 The appellant filed a complaint in the District Court of the United States for the Northern District of New York to set aside that order. A statutory three-judge court refused to set it aside, 107 F.Supp. 184, and this appeal followed. 14 We need not go into the differences between towage and freightage. It is admitted for the purposes of this case that the limitations placed by the order of March 7, 1944, upon the original certificate issued Hutton in 1942, had the effect of restricting his operations to freightage and denied him the right to engage in towage. The appellant cannot now raise the question of the power of the Commission to modify the original certificate of July 17, 1942, by the limitations contained in the order of March 7, 1944. Whether the Commissions's action in reopening the 1942 proceedings and placing the limitations on the certificate theretofore issued was right or wrong, the jurisdiction of the Commission was not destroyed thereby. A direct attack in such circumstances was the remedy. 15 Hutton not only did not object. He accepted the modified certificate and operated under it, just as he had always operated. His operation was not cut down by the limitations placed upon the certificate. The appellant, as transferee of that modified certificate, stands in no better position than Hutton stood. Cf. Gregg Cartage & Storage Co. v. United States, 316 U.S. 74, 82—83, 62 S.Ct. 932, 936, 86 L.Ed. 1283. Indeed, in the 1947 transfer proceedings before the Commission when the appellant sought to acquire Hutton's amended certificate of March 7, 1944, the appellant objected that the protestant there could not raise the question of the Commission's power to modify the certificate, as this would be a collateral attack on the Commission's order. That is exactly what the appellant seeks to do here. It cannot in this collateral proceeding attack the validity of the Commission's order of March 7, 1944. Securities & Exchange Comm. v. Central-Illinois Sec. Corp., 338 U.S. 96, 143, 69 S.Ct. 1377, 1401, 93 L.Ed. 1836; Stanley v. Supervisors, 121 U.S. 535, 550, 7 S.Ct. 1234, 1239, 30 L.Ed. 1000; Reconstruction Finance Corp. v. Lightsey, 4 Cir., 185 F.2d 167; City of Tulsa v. Midland Valley R. Co., 10 Cir., 168 F.2d 252, 254; Brown County v. Atlantic Pipe Line, 5 Cir., 91 F.2d 394, 398. The appellant must take the certificate as it stood at the time it sought and received the Commission's approval for its transfer. 16 Furthermore, the appellant, having invoked the power of the Commission to approve the transfer of the amended certificate to it, is now estopped to deny the Commission's power to issue the certificate in its present form and as it existed prior to the time the appellant sought its transfer. United Fuel Gas Co. v. Railroad Comm., 278 U.S. 300, 307—308, 49 S.Ct. 150, 151, 152, 73 L.Ed. 390; St. Louis Malleable Casting Co. v. George C. Prendergast Construction Co., 260 U.S. 469, 43 S.Ct. 178, 67 L.Ed. 351. This is especially true in view of the appellant's contention at the 1947 transfer hearing that the protestant in that hearing could not raise the question there which the appellant seeks to raise here, as it would constitute a collateral attack on the order of the Commission. The appellant cannot blow hot and cold and take now a position contrary to that taken in the proceedings it invoked to obtain the Commission's approval. If the appellant then had taken the position it seeks now, the Commission might conceivably have refused its approval of the transfer. The appellant accepted the transfer with the limitations contained in the certificate. The appellant now will not be heard to say it is entitled to receive more than its transferor had or the certificate transferred gave. 17 The judgment of the District Court is affirmed. 18 Affirmed. 19 Mr. Justice BLACK concurs in the result. 20 Mr. Justice DOUGLAS dissents.
89
345 U.S. 502 73 S.Ct. 807 97 L.Ed. 1182 UNITED STATESv.INTERNATIONAL BLDG. CO. No. 508. Argued April 8, 1953. Decided May 4, 1953. Rehearing Denied June 8, 1953. See 345 U.S. 978, 73 S.Ct. 1120. Mr. Philip Elman, Washington, D.C., for petitioner. Mr. Malcolm I. Frank, St. Louis, Mo., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Respondent, a Missouri corporation, owns a leasehold of a plot of ground together with an office building erected on it. In 1942 the Commissioner assessed deficiencies against respondent for the taxable years 1933, 1938, and 1939, determining that it had claimed an excessive value as its basis for depreciating the property. These deficiencies were predicated on a basis of $385,000 amortized over the life of the lease. Respondent, who claimed a base of $860,000 amortized over a shorter period, filed petitions for review with the Tax Court. Meanwhile respondent filed a petition under ch. X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. which ended in a confirmed plan of reorganization. Although the Collector filed proof of claim for the deficiencies in those proceedings, he later withdrew the claim under a stipulation that the withdrawal was 'without prejudice' and did not constitute a determination of or prejudice the rights of the United States to any taxes with respect to any year other than those involved in the claim. Shortly thereafter respondent and the Commissioner filed stipulations in the pending Tax Court proceedings stating that 'there is no deficiency in Federal income tax due' from respondent for the taxable years in question, that the tax liability for each of the years was nil, and that the jeopardy assessment was abated.1 The Tax Court, pursuant to the stipulation, entered formal decisions that there were no deficiencies for the taxable years in question. The Tax Court, however, held no hearing; no stipulations of fact were entered into; no briefs were filed or argument had. The issue as to the correctness of the basis of depreciation used by respondent was, however, the basis of its appeal to the Tax Court. And so, when the Commissioner in 1948 assessed deficiencies for the years 1943, 1944, and 1945, challenging once more the correctness of the basis of depreciation, respondent paid the deficiencies and brought this suit to recover, alleging inter alia that the decisions of the Tax Court for the years 1933, 1938, and 1939 were res judicata of the fact that the basis for depreciation was $860,000. The District Court held against respondent. 97 F.Supp. 595. The Court of Appeals reversed, 8 Cir., 199 F.2d 12. Because of a conflict between that decision and Trapp v. United States, 177 F.2d 1, decided by the Court of Appeals for the Tenth Circuit, we granted certiorari. 2 The governing principle is stated in Cromwell v. County of Sac, 94 U.S. 351, 352—353, 24 L.Ed. 195. A judgment is an absolute bar to a subsequent action on the same claim. 3 'But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action; not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.' 4 And see Tait v. Western Md. R. Co., 289 U.S. 620, 623, 53 S.Ct. 706, 707, 77 L.Ed. 1405; Mercoid Corp. v. Mid-Continent Co., 320 U.S. 661, 671, 64 S.Ct. 268, 273, 88 L.Ed. 376; Commissioner v. Sunnen, 333 U.S. 591, 597—598, 68 S.Ct. 715, 719, 92 L.Ed. 898. Estoppel by judgment, or collateral estoppel as it is often called, is applicable in the federal income tax field. Tait v. Western Md. R. Co., supra, 289 U.S. at page 624, 53 S.Ct. at page 707; Commissioner v. Sunnen, supra, 333 U.S. at page 598, 68 S.Ct. at page 719. 5 We conclude that the decisions entered by the Tax Court for the years 1933, 1938, and 1939 were only a pro forma acceptance by the Tax Court of an agreement between the parties to settle their controversy for reasons undisclosed. There is no showing either in the record or by extrinsic evidence, see Russell v. Place, 94 U.S. 606, 608, 24 L.Ed. 214, that the issues raised by the pleadings were submitted to the Tax Court for determination or determined by that court. They may or may not have been agreed upon by the parties. Perhaps, as the Court of Appeals inferred, the parties did agree on the basis for depreciation. Perhaps the settlement was made for a different reason, for some exigency arising out of the bankruptcy proceeding. As the case reaches us, we are unable to tell whether the agreement of the parties was based on the merits or on some collateral consideration. Certainly the judgments entered are res judicata of the tax claims for the years 1933, 1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits. But unless we can say that they were an adjudication of the merits, the doctrine of estoppel by judgment would serve an unjust cause: it would become a device by which a decision not shown to be on the merits would forever foreclose inquiry into the merits. Estoppel by judgment includes matters in a second proceeding which were actually presented and determined in an earlier suit. See Commissioner v. Sunnen, supra, 333 U.S. at page 598, 68 S.Ct. at page 719. A judgment entered with the consent of the parties may involve a determination of questions of fact and law by the court. But unless a showing is made that that was the case, the judgment has no greater dignity, so far as collateral estoppel is concerned, than any judgment entered only as a compromise of the parties. 6 Reversed. 1 The stipulation for the year 1933, which is typical, reads as follows: 'It is hereby stipulated that there is no deficiency in Federal income tax due from the petitioner for the taxable year 1933 and that the following statement shows the petitioner's Federal income tax liability for the taxable year 1933: "Tax liability.................None "Assessment (Jeopardy): January 23, 1942 (not paid).$2,188.12 "Assessment to be abated.$2,188.12"
89
345 U.S. 514 73 S.Ct. 856 97 L.Ed. 1211 WELLSv.SIMONDS ABRASIVE CO. No. 394. Argued Jan. 7, 1953. Decided May 18, 1953. Mr. Charles J. Biddle, Philadelphia, Pa., for petitioner. Mr. Philip Price, Philadelphia, Pa., for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 Cheek Wells was killed in Alabama when a grinding wheel with which he was working burst. The wheel had been manufactured by the respondent, a corporation with its principal place of business in Pennsylvania. The administratrix of the estate of Cheek Wells brought an action for damages in the federal court for the Eastern District of Pennsylvania after one year, but within two years, after the death. Jurisdiction was based upon diversity of citizenship. 2 The section of the Alabama Code1 upon which petitioner predicated her action for wrongful death provided that action '* * * must be brought within two years from and after the death * * *.' The respondent moved for summary judgment on the ground the Pennsylvania wrongful death statute required suit to be commenced within one year.2 In an opinion3 on that motion, the district judge found that the Pennsylvania statute, which was analogous to the Alabama statute, had a one-year limitation. He further found that the Pennsylvania conflict of laws rule called for the application of its own limitation rather than that of the place of the accident. Deeming himself bound by the Pennsylvania conflicts rule, he ordered summary judgment for the respondent. The Court of Appeals for the Third Circuit affirmed.4 3 We granted certiorari5 limited to the question whether this Pennsylvania conflicts rule violates the Full Faith and Credit Clause6 of the Federal Constitution. 4 The states are free to adopt such rules of conflict of laws as they choose, Kryger v. Wilson, 1916, 242 U.S. 171, 37 S.Ct. 34, 61 L.Ed. 229, subject to the Full Faith and Credit Clause and other constitutional restrictions. The Full Faith and Credit Clause does not compel a state to adopt any particular set of rules of conflict of laws; it merely sets certain minimum requirements which each state must observe when asked to apply the law of a sister state. 5 Long ago, we held that applying the statute of limitations of the forum to a foreign substantive right did not deny full faith and credit, McElmoyle v. Cohen, 1839, 13 Pet. 312, 10 L.Ed. 177; Townsend v. Jemison, 1850, 9 How. 407, 13 L.Ed. 194; Bacon v. Howard, 1857, 20 How. 22, 15 L.Ed. 811. Recently we referred to '* * * the well established principle of conflict of laws that 'If action is barred by the statute of limitations of the forum, no action can be maintained though action is not barred in the state where the cause of action arose.' Restatement, Conflict of Laws, s 603 (1934).' Order of United Commercial Travelers v. Wolfe, 1947, 331 U.S. 586, 607, 67 S.Ct. 1355, 1365, 91 L.Ed. 1687.7 6 The rule that the limitations of the for um apply (which this Court has said meets the requirements of full faith and credit) is the usual conflicts rule of the states.8 However, there have been divergent views when a foreign statutory right unknown to the common law has a period of limitation included in the section creating the right. The Alabama statute here involved creates such a right and contains a built-in limitation. The view is held in some jurisdictions that such a limitation is so intimately connected with the right that it must be enforced in the forum state along with the substantive right.9 7 We are not concerned with the reasons which have led some states for their own purposes to adopt the foreign limitation, instead of their own, in such a situation. The question here is whether the Full Faith and Credit Clause compels them to do so. Our prevailing rule is that the Full Faith and Credit Clause does not compel the forum state to use the period of limitation of a foreign state. We see no reason in the present situation to graft an exception onto it. Differences based upon whether the foreign right was known to the common law or upon the arrangement of the code of the foreign state are too unsubstantial to form the basis for constitutional distinctions under the Full Faith and Credit Clause. 8 We agree with the respondent that Engel v. Davenport, 1926, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813, has no application here. It presented an entirely different problem. Congress had given a statutory cause of action to seamen for certain personal injuries, placing concurrent jurisdiction in the state and federal courts . In Engel, supra, the two-year federal limitation rather than the one-year California limitation for similar actions was held controlling in an action brought in the California courts. Once it was decided that the intention of Congress was that the two-year limitation was meant to apply in both federal and state courts under our Federal Constitution, that was the supreme law of the land.10 9 Our decisions in Hughes v. Fetter, 1951, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, and First National Bank v. United Air Lines, 1952, 342 U.S. 396, 72 S.Ct. 421, 96 L.Ed. 441, do not call for a change in the well-established rule that the forum state is permitted to apply its own period of limitation. The crucial factor in those two cases was that the forum laid an uneven hand on causes of action arising within and without the forum state. Causes of action arising in sister states were discriminated against. Here Pennsylvania applies her one-year limitation to all wrongful death actions wherever they may arise. The judgment is affirmed. 10 Affirmed. 11 Mr. Justice CLARK, not having heard oral argument, took no part in the consideration or decision of this case. 12 Mr. Justice JACKSON, with whom Mr. Justice BLACK and Mr. Justice MINTON join, dissenting. 13 We are unable to accept the results or follow the reasoning of the Court. Petitioner's decedent, a resident of Alabama, was killed in that State by a bursting emery wheel alleged to have been defective. It was manufactured by respondent, a Pennsylvania corporation. Finding it impossible to serve process on the defendant in Alabama, petitioner brought an action in the United States Court for the Eastern District of Pennsylvania. Her action was based on a statute of Alabama which conferred a right of action for wrongfully causing death and required that the action be brought within two years from the death. This she did, but her complaint was dismissed on the ground that, since the federal court was sitting in Pennsylvania, it was bound by the Pennsylvania statute of limitations of one year and, hence, that her action was barred. I believe the United States District Court, though sitting in Pennsylvania, should apply the law of Alabama, both as to liability and as to limitation. 14 The respondent relies upon the line of cases that began with Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. A careful reading of the Erie decision will show that, so far as it applies at all, it is authority for the plaintiff's and not the defendant's position. The Erie injury occurred in Pennsylvania, but the action was brought in a United States District Court in New York. Although the trial court sat in New York, this Court held that it must decide liability by Pennsylvania law, that is, by the law of the state of injury, not that of the forum state, which holding, if applied here, would require that this case be adjudged by the law of Alabama even though it is brought in a federal court sitting in another state. That opinion, by Mr. Justice Brandeis, will be searched in vain for any hint that this result depended on the New York law of conflicts, which is not even paid the respect of mention. Erie R. Co. v. Tompkins held that there is no federal common law of torts and that federal courts must not improvise one of their own but must follow that state's law which is applicable to the case. 15 That the applicable state law was that of Pennsylvania, instead of that of the forum, was assumed without discussion of the reason because it was pursuant to what is probably the best-settled rule of conflicts in tort cases. It was stated by Mr. Justice Holmes, as follows: '* * * (I)t is established as the law of this court that when a person recovers in one jurisdiction for a tort committed in another he does so on the ground of an obligation incurred at the place of the tort that accompanies the person of the defendant elsewhere, and that is not only the ground but the measure of the maximum recovery.' Western Union Telegraph Co. v. Brown, 234 U.S. 542, 547, 34 S.Ct. 955, 956, 58 L.Ed. 1457. See also Slater v. Mexican National R. Co., 194 U.S. 120, 126, 24 S.Ct. 581, 582, 48 L.Ed. 900; Cardozo, J. in Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198. The existence and justice of this principle is recognized by its adoption as the policy of federal law. The Federal Tort Claims Act makes the basic test of the Government's liability whether a private person 'would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 60 Stat. 812, 843, 28 U.S.C.A. § 1346(b). 16 Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477, also cited by respondent, contains language that would seem to make all conflict questions depend on the law of the forum. But that was an action on contract in which conflict considerations prevail that are not present in tort cases. It is but dictum so far as it touches this statutory tort case. 17 Most of these decisions are actuated by a laudable but undiscriminating yen for uniformity within the forum state. Thus, 'Otherwise the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side.' Klaxon Co. v. Stentor Electric Mfg. Co., supra, 313 U.S. at page 496, 61 S.Ct. at page 1021, citing the Erie case; and the Court's opinion here refers to it as a 'crucial factor' that 'the forum laid an uneven hand on causes of action arising within and without the forum state.' 18 But the essence of the Full Faith and Credit Clause of the Constitution is that uniformities other than just those within the state are to be observed in a federal system. The whole purpose and the only need for requiring full faith and credit to foreign law is that it does differ from that of the forum. But that disparity does not cause the type of evil aimed at in Erie R. Co. v. Tompkins, supra, namely, that the same event may be judged by two different laws, depending upon whether a state court or a federal forum within that state is available. Application of the Full Faith and Credit Clause prevents this disparity by requiring that the law where the cause of action arose will follow the cause of action in whatever forum it is pursued. 19 The Court's decision, in contrast with our position, would enable shopping for favorable forums. Suppose this plaintiff might have obtained service of process in several different states—an assumption not extravagant in the case of many national corporations. Under the Court's holding, she could choose from as many varieties of law as of forums. Under our theory, wherever she elected to sue (if she had a choice), she would take Alabama law with her. Suppose even now she can get service in a state with no statute of limitations or a long one; can she thereby revive a cause of action that has expired under Alabama law? The Court's logic would so indicate. The life of her cause of action is then determined by the fortuitous circumstances that enable her to make service of process in a certain state or states. 20 Another very practical consideration indicates the unworkability of a doctrine for federal courts that the place of trial is the sole factor which determines the law of the case. 28 U.S.C. § 1404(a) authorizes certain transfers of any civil action from state to state for the convenience of witnesses or of parties, or in the interests of justice. The purpose was to adopt for federal courts the principles of forum non conveniens. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207. These are broad and imprecise and involve such considerations as the state of the court's docket. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. Are we then to understand that parties may get a change of law as a bonus for a change of venue? If the law of the forum in which the case is tried is to be the sole test of substantive law, burden of proof, contributory negligence, measure of damages, limitations, admission of evidence, conflict of laws and other doctrines, see Guaranty Trust Co. v. York, 326 U.S. 99, at page 109, 65 S.Ct. 1464, at page 1469, 89 L.Ed. 2079, then shopping for a favorable law via the forum non conveniens route opens up possibilities of conflict, confusion and injustice greater than anything Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, ever held. 21 This case is in United States Court, not by grace of Pennsylvania, but by authority of Congress, and what I said in First National Bank of Chicago v. United Air Lines, 342 U.S. 396, 398, 72 S.Ct. 421, 422, 96 L.Ed. 441, seems to me applicable here. I had supposed, before Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, that the Commonwealth of Pennsylvania could close its courts to trial of this case. But no one would have questioned, I should think, that if the cause were entertained it must be tried in accordance with the law of the place of the wrong. Neither Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, nor Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, indicate to the contrary or have pertinence here, for in both cases the cause of action arose under the laws of the state of the forum and no conflict, or need to resort to foreign law, was present. They were issues between federal improvised law and settled state law. 22 Whether the principle of full faith and credit and of the law of conflicts will carry a general statute of limitations into the state of the forum along with the right is a more difficult question in the light of our precedents. McElmoyle v. Cohen, 13 Pet. 312, 10 L.Ed. 177. 23 Early cases drew sharp distinction between rules of substantive law and rules of procedure. They classified statutes of limitations as procedural and hence excluded from the operation of the Full Faith and Credit Clause. This is not difficult to understand in the atmosphere of those times. Many state legislatures adopted comprehensive statutes of limitations applicable to equitable, common-law and statutory cases. Following the example of the early Field Code, the law of limitations not infrequently was incorporated into codes of procedure and thus was classified as procedural by the legislatures. In those days, federal courts were required to conform to local rules of procedure, although often independent of local substantive law under Swift v. Tyson, supra. Today that relationship is completely inverted. Federal procedure is not subservient to state law; substantive law is. 24 But, in Guaranty Trust Co. v. York, supra, this Court riddled the distinction between 'substantive' and 'procedural,' on which McElmoyle v. Cohen, supra, rests. Even as to general statutes of limitations recent decisions have bound the right and the limitation into a single bundle to be taken by the federal court as a whole. 'Since that cause of action is created by local law, the measure of it is to be found only in local law. It carries the same burden and is subject to the same defenses in the federal court as in the state court. * * * It accrues and comes to an end when local law so declares. * * *' Ragan v. Merchants Transfer & Warehouse Co., supra, 337 U.S. at page 533, 69 S.Ct. at page 1235, 93 L.Ed. 1520. We have also required that under some circumstances a forum must apply a foreign statute of limitations to a contract case. Order of United Commercial Travelers of America v. Wolfe, 331 U.S. 586, 67 S.Ct. 1355, 91 L.Ed. 1687. 25 But whatever may be the argument concerning general statutes of limitations as applied to common-law causes, this Court long ago recognized a distinction as to limitations on the action created by statutes in the pattern of the Lord Campbell Act. This Court early held such an action in federal court to be barred by the limitation contained in the applicable state statute. The reasoning of Mr. Chief Justice Waite is just as valid when it leads to a contrary result. For a unanimous Court, he wrote: '* * * The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within 12 months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. * * * Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right. * * *' The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 147, 30 L.Ed. 358. 26 Subsequently, Mr. Justice Holmes twice wrote for the Court to the same effect. In Davis v. Mills, 194 U.S. 451, at page 454, 24 S.Ct. 692, 693, 48 L.Ed. 1067, he said: 27 '* * * But, as the source of the obligation is the foreign law, the defendant, generally speaking, is entitled to the benefit of whatever conditions and limitations the foreign law creates. Slater v. Mexican National Railroad, 194 U.S. 120, 24 S.Ct. 581 (48 L.Ed. 900). It is true that this general proposition is qualified by the fact that the ordinary limitations of actions are treated as laws of procedure, and as belonging to the lex fori, as affecting the remedy only, and not the right. But in cases where it has been possible to escape from that qualification by a reasonable distinction, courts have been willing to treat limitations of time as standing like other limitations, and cutting down the defendant's liability wherever he is sued. The common case is where a statute creates a new liability, and in the same section or in the same act limits the time within which it can be enforced, whether using words of condition or not. * * *' 28 And in Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, at page 201, 36 S.Ct. 75, 76, 60 L.Ed. 226, he wrote: 29 '* * * But, irrespective of the fact that the act of Congress is paramount, when a law that is relied on as a source of an obligation in tort sets a limit to the existence of what it creates, other jurisdictions naturally have been disinclined to press the obligation farther. * * *' 30 In all three of these cases the benefit of this doctrine that the remedy is inseparable from the right accrued to defendants. But the validity of a doctrine does not depend on whose ox it gores. In Engel v. Davenport, 271 U.S. 33, 38, 46 S.Ct. 410, 412, 70 L.Ed. 813, this Court employed the same premise as to the unity of the right and the limitation to hold a plaintiff entitled to the longer period prescribed in federal legislation instead of the short statutory period of the forum state, saying of the limitation, 'This provision is one of substantive right, setting a limit to the existence of the obligation which the Act creates. * * * And it necessarily implies that the action may be maintained, as a substantive right, if commenced within the two years.' 31 The Supreme Court of Alabama has held the same doctrine applicable to the very statute in question, saying, 'This is not a statute of limitations, but of the essence of the cause of action, to be disclosed by averment and proof.' Parker v. Fies & Sons, 243 Ala. 348, 350, 10 So.2d 13, 15. The doctrine is well recognized in the literature of the law of conflicts.* 32 The Court of Appeals for the District of Columbia in a well considered and documented opinion held that a federal court in the District trying an action brought under the Wrongful Death Act of Nebraska must apply the two-year limitation of the Nebraska Act and not the one-year limitation of the law of the forum. Judge Proctor, admitting 'considerable authority' to the contrary, said: 'However, there is a line of opposing authority which takes the view that as to rights of action of a purely statutory nature, such as the so-called wrongful death statutes, the time thereby prescribed for filing suit operates as a limitation of the liability itself as created by the statute, and not of the remedy alone. It is deemed to be a condition attached to the right to sue. As such, time has been made of the essence of the right, which is lost if the time is disregarded. The liability and the remedy being created by the same statute, limitation of the remedy must be treated as limitation of the right.' Lewis v. Reconstruction Finance Corporation, 85 U.S.App.D.C. 339, 177 F.2d 654, 655. Cf. Young v. United States, 87 U.S.App.D.C. 145, 184 F.2d 587, 21 A.L.R.2d 1458. See also Wilson v. Massengill, 6 Cir., 124 F.2d 666, certiorari denied 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758; Maki v. George R. Cooke Co., 6 Cir., 124 F.2d 663, 146 A.L.R. 1352, certiorari denied 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758. 33 We think that the better view of the case before us would be that it is Alabama law which giveth and only Alabama law that taketh away. 1 'A personal representative may maintain an action, and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death. Such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission, or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed, according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate.' Ala.Code, 1940, Tit. 7, § 123. 2 Purdon's Pa.Stat.Ann., 1931, Tit. 12, § 1603. 3 D.C.1951, 102 F.Supp. 519. 4 3 Cir., 1952, 195 F.2d 814. See also Quinn v. Simonds Abrasive Co., 3 Cir., 1952, 199 F.2d 416. 5 1952, 344 U.S. 815, 73 S.Ct. 57. 6 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.' U.S.Const., Art. IV, § 1, cl. 1. 7 Cf. dissenting opinion by Mr. Justice Black, Order of United Commercial Travelers v. Wolfe, 1947, 331 U.S. 625, 67 S.Ct. 1374, 91 L.Ed. 1687. 8 Restatement, Conflict of Laws, § 603 (1934). 9 Cristilly v. Warner, 1913, 87 Conn. 461, 88 A. 711, 51 L.R.A., N.S., 415, overruled on another ground, Daury v. Ferraro, 1928, 108 Conn. 386, 143 A. 630, 62 A.L.R. 1323; Louisville & Nashville R. Co. v. Burkhart, 1913, 154 Ky. 92, 157 S.W. 18, 46 L.R.A.,N.S., 687 (dictum); Negaubauer v. Great Northern R. Co., 1904, 92 Minn. 184, 99 N.W. 620. Contra: White v. Govatos, 1939, 1 Terry 349, 40 Del. 349, 10 A.2d 524; Tieffenbrun v. Flannery, 1930, 198 N.C. 397, 151 S.E. 857, 68 A.L.R. 210; Rosenzweig v. Heller, 1931, 302 Pa. 279, 153 A. 346. See also Restatement, Conflict of Laws, § 397, Comment b, and § 605 (1934). 10 'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' U.S.Const., Art. VI, cl. 2. * See Goodrich, Conflict of Laws (3d ed.), § 86, for discussion and citations; Blume and George, Limitations and the Federal Courts, 49 Mich.L.Rev. 937.
78
345 U.S. 544 73 S.Ct. 848 97 L.Ed. 1232 WATSON et al.v.COMMISSIONER OF INTERNAL REVENUE. No. 290. Argued Feb. 2, 1953. Decided May 18, 1953. Rehearing Denied June 15, 1953. See 345 U.S. 1003, 73 S.Ct. 1128. Mr. Arthur McGregor, Los Angeles, Cal., for petitioners. Mr. Ellis N. Slack, Washington, D.C., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 This case relates to a taxpayer who, for several years, held an undivided interest in an orange grove and engaged in the business of growing and selling the oranges it produced. In the midst of the 1944 growing season, she sold her interest in the grove, including an unmatured crop then on the trees. The question before us is whether, for federal income tax purposes, she must treat that part of her profit from the sale which is attributable to the unmatured crop as ordinary income or as a capital gain. For the reasons hereafter stated, she must treat it as ordinary income. 2 In 1944, Mrs. M. Gladys Watson, one of the petitioners here, and her two brothers, each owned an undivided one-third interest in a 110-acre navel orange grove near Exeter, Tulare County, California. Its management had been supervised by her brothers since 1912 and, since 1942, she and her brothers had operated it as a partnership. It was the oldest and one of the best groves in the locality. Its production per acre was about twice the average of such production in the county. In each of the last five years the value of its crop had increased over that of the year before. In 1943 it produced 79,851 loose boxes of oranges, yielding a gross income of $136,808.71. After deducting all expenses of cultivation, operation, picking and hauling, a net income of $92,153.05 was left.1 Anticipating a heavy frost after November, 1944, one of the brothers advocated selling the grove before then. Accordingly, in May or June, it was offered for $197,100, complete, including land, trees, unmatured crop, improvements, equipment and a five-acre peach orchard. At about that time the 1944 orange crop was in bloom. 3 By July the smaller fruit had dropped from the trees and the crop was 'set,' but not assured. A purchaser became interested but delayed his decision so as to determine more accurately the probable crop and to cause the sellers to bear more of the expense of its care. He examined past production records and, by early August, received estimates that the 1944 crop might be from 70,000 to 80,000 boxes, which, at current prices, would bring him $120,000 for the crop above expenses. One of Mrs. Watson's brothers also estimated the 1944 crop at 70,000 boxes if it matured. August 10, the sales price of $197,100 was agreed upon, payable $10,000 in cash and the balance September 1. No allocation of the price between the crop and the rest of the property was specified but the seller bore the expense of caring for the crop up to September 1, amounting to $16,020.54. The sale was carried through and there was no serious frost. The crop filled 74,268 boxes. The purchaser sold them for.$146,000, yielding him a net return of $126,000. 4 Mrs. Watson filed a joint return with her husband, taking full deductions for her one-third share of all of the business expenses incurred in the cultivation of the crop, but treating her gain from the sale of the grove, including the unmatured crop, as a long-term capital gain. On that basis, her net gain from the sale of the grove was shown as $48,819.82, but, treating it as a long-term capital gain, only 50% of it, or $24,409.91, was included in her taxable income.2 5 The Commissioner of Internal Revenue assessed a deficiency against petitioners, largely based on his claim that whatever part of Mrs. Watson's income was attributable to the unmatured crop should be treated as ordinary income. He allocated $122,500, out of the $197,100 received for the grove, as attributable to the unmatured crop. On that premise, he assessed a deficiency of $24,101.35 against petitioners on their joint return. On review, the Tax Court, with two judges dissenting, sustained the Commissioner in principle but reduced to $40,000 the portion of the proceeds attributable to the crop. 15 T.C. 800. With other adjustments, not material here, the Tax Court reduced the deficiency to $6,920.35. The Court of Appeals affirmed. 197 F.2d 56. In the meantime, the Tax Court made comparable decisions in McCoy v. Commissioner, 15 T.C. 828, and Owen v. Commissioner, P-H T.C. Memo, 50,300, each of which was reversed on appeal, 10 Cir., 192 F.2d 486, and 5 Cir., 192 F.2d 1006. Shortly before the latter decisions, the Revenue Act of 1951 amended the statute in relation to taxable years beginning after December 31, 1950, to permit proceeds from certain sales of unharvested crops to be treated as capital gains.3 We granted certiorari in the instant case to resolve the above-indicated conflict of statutory construction still affecting many sales made before 1951. 344 U.S. 895, 73 S.Ct. 274. 6 The issue before us turns upon the Acts of Congress. In 1951, Congress, for the first time, dealt expressly and specifically with this subject.4 While that action was prospective only, its terms throw light on the problems of prior years.5 The adoption of that amendment emphasized the point that the question was one of federal law. Its adoption also recognized that, in order for such income to be a capital gain, an affirmative statement by Congress was needed. Finally, it not only permitted proceeds of unharvested crops to be treated as capital gains under certain circumstances, but it provided that, under those circumstances, the taxpayer could not deduct from his taxable income the expenses attributable to the production of the unharvested crop. Those expenses thereafter must be treated as capital investments added to the basis of the property to which they relate. This emphasizes the impropriety of the interpretation advocated by Mrs. Watson in the instant case. She seeks to deduct her share of the crop cultivation expenses at 100% up to the date of the sale. At the same time, she claims a right to report only 50% of her gain on the sale of those crops to which the cultivation expenses relate.6 7 In the instant case, we are dependent upon § 117(j) of the Internal Revenue Code, as in effect in 1944.7 The controlling language in that subsection then required that, in order for gains from the sale of property to be treated as capital gains, the property sold must be 'used in the trade or business' of the taxpayer, 'held for more than 6 months,' and not 'held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business'. In the instant case, the Commissioner contends that, while the land and trees met these and all other tests of the subsection, the unmatured, unharvested crop of oranges met none of the above three. 8 Each day brought the annual crop closer to its availability for sale in the ordinary course of that business. While the uncertainty of its condition at maturity discounted its current value, nevertheless, its presence contributed substantially to the value of the grove. The Commissioner allocated to the unmatured crop, as of September 1, a value of $122,500 out of the $197,100. The Tax Court reduced this to $40,000. We accept the latter amount now confirmed by the Court of Appeals. It is obvious that the parties to this sale did in fact attribute substantial value to the unmatured crop. If, at any moment, the crop had been stripped from the trees or destroyed by frost, there would have resulted at once a substantial reduction in the sales value of the grove. 9 Assuming $40,000 to be the value fairly attributable to the presence of the crop in August and September, 1944, it remains for the taxpayer to demonstrate that § 117(j) has authorized that value, in addition to the value of the land, trees, improvements and equipment, to be treated as a capital gain. 10 Mrs. Watson and the Courts of Appeals for the Fifth and Tenth Circuits have placed emphasis upon a claim that, under the law of the state where the land is situated, an unmatured, unharvested crop, for many purposes, is treated as real property. We regard that as immaterial. Whether or not the crop be real property, the federal income tax upon the gain resulting from its sale is, in its nature, a subject of federal law. 11 The Commissioner urges two grounds in support of his position that § 117(j) does not authorize the taxpayer's treatment of the proceeds of the unmatured crop as a capital gain. The first is that the proceeds fairly attributable to the crop are derived from property held by the taxpayer primarily for sale to customers in the ordinary course of the taxpayer's trade or business. We agree with that contention. Although the property was not severable at the date of its sale, there is nothing in the Act requiring it to be severable. While, in previous years, like crops were held for a sale that occurred after maturity, in 1944 the date of that sale came September 1. There is nothing in the Act that distinguishes between the taxable character of a gain derived from a present sale discounting the hazards of the future, and one derived from a later sale when the hazards are past. After the transfer of title to the grove, the crop on the trees retained its character and continued to be held for sale to customers of the grove owner in the ordinary course of the owner's trade or business. 12 The Commissioner's treatment of the proceeds of sales of unmatured crops as ordinary income in the absence of a statutory requirement to the contrary is consistent with the policy evidenced in Williams v. McGowan, 2 Cir., 152 F.2d 570, 572, 162 A.L.R. 1036, which established in the Second Circuit, in 1945, the doctrine that 'upon the sale of a going business it (the sales price) is to be comminuted into its fragments, and these are to be separately matched against the definition in § 117(a)(1) * * *.' It is consistent also with the policy of the Bureau of Internal Revenue and the Tax Court, dating, at least, from the statement made by the Bureau in 1946, that, under circumstances comparable to those before us, 'regardless of their stage of development, any gain realized from the sale of growing crops is ordinary income.'8 13 We do not have here the situation which arises from the sale of land, including coal or other mineral wealth not separated from its natural state and not in the course of annual growth leading to a seasonal separation. See Butler Consolidated Coal Co. v. Commissioner, 6 T.C. 183. The instant case also is distinguishable from that of growing timber which is not in itself an annual or short-term product. See Carroll v. Commissioner, 5 Cir., 70 F.2d 806; Camp Manufacturing Co. v. Commissioner, 3 T.C. 467. 14 Having reached this conclusion, we find it unnecessary to pass upon the Commissioner's second contention that, because the crop did not come into existence before it was 'set' in July, or at least before it was in bloom in May or June, it had not been held by Mrs. Watson for more than six months at the time of its sale. 15 Accordingly, the judgment of the Court of Appeals is affirmed. 16 Affirmed. 17 Mr. Justice MINTON, with whom Mr. Justice REED and Mr. Justice DOUGLAS join, dissenting from the Court's opinion and judgment. 18 The question is: Should the sale and conveyance of this land for a lump sum be treated wholly as a sale of real estate taxable as a long-term capital gain, or should the crop of immature oranges be segregated and its value taxed as ordinary income? 19 The pertinent provisios of the statute are set forth in the margin.1 Mrs. Watson does not contend that the growing oranges were capital assets as defined in § 117(a), but instead she claims that they were 'property used in the trade or business' as defined in § 117(j) and that she is entitled to capital gains treatment under that section. Her claim rests on her contention that the growing oranges were: (1) real property; (2) used in her trade or business; and (3) held for more than 6 months; and that they were neither (4) properly includible in inventory; nor (5) held primarily for sale to customers in the ordinary course of her business. 20 First. The immature oranges were real property when the orange grove was sold. Mrs. Watson and her brothers sold the green oranges as part of the land, without severance, constructive or otherwise. How this transaction should be treated under California law does not necessarily control its treatment taxwise under the federal statute. Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199. However, real property is not defined in the Revenue Act, and in the absence of such definition we must look to the law of California to determine what is real property. Under that law, this crop of oranges passed as real estate. Wilson v. White, 161 Cal. 453, 460, 119 P. 895, 898; Young v. Bank of California, 88 Cal.App.2d 184, 187—188, 198 P.2d 543, 545—546. The immature fruit, from the falling of the blossoms until the harvesting, is a part of the realty, as its very existence and growth are wholly dependent upon the ground from which it takes its life and gains its sustenance. Actually severed from the ground before maturity, the fruit is worthless. Its life, and hence its value, lies in the soil of which it is a part. 21 Second. The Commissioner urges that, unlike the trees, the oranges are the ultimate product of the enterprise, and as such are not 'used' in the business. We do not interpret the word 'used' so narrowly. We believe that the phrase 'used in the trade or business' is simply designed to differentiate business assets from the taxpayer's personal assets and his nonbusiness, income-producing property. It is not disputed that Mrs. Watson's business was raising and selling oranges nor that the land and orange trees were used in her business. At the time the orange grove was sold, the oranges were as much a part of the trees as the leaves and the bark. Therefore, the oranges were 'property used in (Mrs. Watson's) trade or business'. 22 Third. Were the oranges 'held for more than 6 months' before the sale? It is clear that the land and trees had been held since January 1, 1942, over two and one-half years prior to the sale. As we have just said, the oranges were real property, an integral part of the trees on which they grew. Therefore, the holding period for the oranges is the same as for the trees, and the oranges were 'held for more than 6 months' within the meaning of § 117(j). 23 Fourth. The Bureau itself has said that the growing oranges were not 'properly * * * includible in (Mrs. Watson's) inventory.' The Bureau's ruling provides in pertinent part: 24 'While farmers may report their gross income upon the accrual basis (in which an inventory to determine profits is used), they are not permitted to inventory growing crops for the reason that the amount and value of such crops on hand at the beginning and end of the taxable year can not be accurately determined. * * *'2 25 Fifth. We believe that the growing oranges were not 'held * * * primarily for sale to customers in the ordinary course of (Mrs. Watson's) trade or business.' What was the business of the taxpayer? She was in the business of raising and selling matured fruit. She was not in the business of selling land and trees and green fruit growing upon the trees. She was going out of the business in which she had long been engaged. She sold everything for one lump sum, without any allocation to land, trees or green fruit. It was not an ordinary business transaction. It was an extraordinary transaction. It was not a sale in the ordinary course of business. It was a sale out of the course of business for the purpose of going out of business. It was not a sale to an ordinary customer, who bought ripe fruit in quantities less than the whole crop, as Mrs. Watson had been accustomed to sell them. It was a sale of land and green fruit to one not a customer. Mrs. Watson did not split the sale up into land, trees, and green fruit. She sold all as one, and at the same time. It is the Commissioner who breaks up her sale into parts and makes something out of it different from what it was, and then proceeds to tax the transaction as he remade it. I have always understood that tax laws deal with realities. It is unrealistic to treat an extraordinary sale for one consideration of real property, part of which is immature green fruit, which sale will put the seller completely out of business, as an ordinary sale in the course of trade or business, when the business being closed out had been one that dealt only in the sale of matured fruit. The Commissioner is not free to remake the transaction as he sees fit. 26 The Tenth Circuit and the Fifth Circuit have reached a different conclusion from that of the Tax Court and the Ninth Circuit in the instant case. In McCoy v. Commissioner, 10 Cir., 192 F.2d 486, the court was dealing with the sale of land with a growing crop of wheat upon it. In Owen v. Commissioner, 5 Cir., 192 F.2d 1006, as in the instant case, the court was dealing with the sale of an orange grove. Moreover, two District Courts have held that the seller of an orange grove is entitled to capital gains treatment of the value of the immature oranges. Cole v. Smyth, 96 F.Supp. 745; Irrgang v. Fahs, D.C., 94 F.Supp. 206. I agree with these courts that the oranges in the instant case were 'property used in (Mrs. Watson's) trade or business' as defined by the Revenue Act. The sale of the orange grove was not to be broken up to enable the Commissioner to tax as personalty that which was real property. The immature crop of green oranges was not property held primarily for sale to customers in the ordinary course of trade or business. 27 In amending the Revenue Act of 1951, Congress took cognizance of the construction placed on § 117(j)(1) by the Commissioner and the Tax Court, and amended the section to make it abundantly clear that unharvested crops were a part of the realty upon which they were growing and were to be given capital gains treatment. 65 Stat. 500, 26 U.S.C. (Supp. V) § 117(j)(3), 26 U.S.C.A. § 117(j)(3). 28 After discussing the conflict that had arisen over the Commissioner's interpretation of the statute as to growing immature crops, the Senate Committee Report on this Amendment states: 29 'Your committee believes that sales of land together with growing crops or fruit are not such transactions as occur in the ordinary course of business and should thus result in capital gains rather than in ordinary income. * * *'3 30 Congress was correcting a misinterpretation of the Revenue Act by the Commissioner and the Tax Court. It was making clear what the Commissioner and the Tax Court had obfuscated. I see no reason why we should strain to uphold a tax which Congress has by recent legislation determined to be incorrect. 31 I would reverse the judgment. 1 In 1942 it yielded 54,939 boxes with a gross income of $82,521.17 and a net of $49,790.10. Its average annual yield from 1934 to 1943 was 55,097 boxes with a gross income of $46,512.68 and a net of $22,141.42. 2 § 117(b) and (c)(2), I.R.C., as amended by § 150(c) of the Revenue Act of 1942, c. 619, 56 Stat. 843—844, 26 U.S.C. (1940 ed., Supp. V) § 117(b) and (c) (2), 26 U.S.C.A. § 117(b), (c)(2). 3 65 Stat. 500—501, 26 U.S.C. (Supp. V) §§ 117(j), 24(f), 113(b)(1), 26 U.S.C.A. §§ 117(j), 24(f), 113(b)(1). 4 The Revenue Act of 1951 added to § 117(j) of the Internal Revenue Code: '(3) Sale of land with unharvested crop. In the case of an unharvested crop on land used in the trade or business and held for more than 6 months, if the crop and the land are sold or exchanged (or compulsorily or involuntarily converted as described in paragraph (2)) at the same time and to the same person, the crop shall be considered as 'property used in the trade or business". 65 Stat. 500, 26 U.S.C. (Supp. V) § 117(j)(3), 26 U.S.C.A. § 117(j)(3). And, equally important, it added to § 24 of the Internal Revenue Code: '(f) Sale of land with unharvested crop. Where an unharvested crop sold by the taxpayer is considered under the provisions of section 117(j)(3) as 'property used in the trade or business', in computing net income no deduction (whether or not for the taxable year of the sale and whether for expenses, depreciation, or otherwise) attributable to the production of such crop shall be allowed.' Id., at 501, 26 U.S.C. (Supp. V) § 24(f), 26 U.S.C.A. § 24(f). 5 The purpose of Congress to make this amendment prospective, rather than retroactive, is emphasized in the very next section of the 1951 Act, 26 U.S.C.A. § 117 note. That section made retroactive to 1942 another amendment to § 117(j). It redefined capital gains so as to include the proceeds of certain sales of livestock, provided such stock be held for draft, breeding or dairy purposes. Stock so held is comparable to the orange trees rather than to the orange crop in the instant case. 6 In this connection, the Senate Committee on Finance, when reporting the proposed amendment in 1951, said: 'Your committee believes that sales of land together with growing crops or fruit are not such transactions as occur in the ordinary course of business and should thus result in capital gains rather than in ordinary income. Section 323 of the bill so provides. 'Your committee recognizes, however, that when the taxpayer keeps his accounts and makes his returns on the cash receipts and disbursements basis, the expenses of growing the unharvested crop or the unripe fruit will be deducted in full from ordinary income, while the entire proceeds from the sale of the crop, as such, will be viewed as a capital gain. Actually, of course, the true gain in such cases is the difference between that part of the selling price attributable to the crop or fruit and the expenses attributable to its production. Therefore, your committee's bill provides that no deduction shall be allowed which is attributable to the production of such crops or fruit, but that the deductions so disallowed shall be included in the basis of the property for the purpose of computing the capital gain. 'The provisions of this section are applicable to sales or other dispositions occurring in taxable years beginning after December 31, 1950. 'The revenue loss under this provision is expected to be about $3 million annually.' S.Rep.No. 781, 82d Cong., 1st Sess. 47 48. 7 Internal Revenue Code, as amended, 56 Stat. 846: § 117. Capital gains and losses '(j) Gains and losses * * * from the sale or exchange of certain property used in the trade or business. '(1) Definition of property used in the trade or business. 'For the purposes of this subsection, the term 'property used in the trade or business' means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23(l), held for more than 6 months, and real property used in the trade or business, held for more than 6 months, which is not (A) property of a kind which would properly be includible in the inventory of the taxpayer if on hand at the close of the taxable year, or (B) property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business * * *. '(2) General rule. If, during the taxable year, the recognized gains upon sales or exchanges of property used in the trade or business * * * exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than 6 months. If such gains do not exceed such losses, such gains and losses shall not be considered as gains and losses from sales or exchanges of capital assets. * * *' (Italics supplied.) See 26 U.S.C. § 117(j), 26 U.S.C.A. § 117(j). 8 'The production of fruit from orchards or groves constitutes a business, and section 117(j) of the Code, supra, is applicable to the sale of an orchard or grove. The crops are produced with the primary purpose of selling the fruit to customers in the ordinary course of the business. Therefore, regardless of their stage of development, any gain realized from the sale of growing crops is ordinary income. 'In view of the foregoing, it is held that, for Federal income tax purposes, where citrus groves are sold with fruit on the trees, a portion of the selling price must be allocated to the fruit and the balance to the land and trees. Gain from the sale of the fruit will constitute ordinary income. Gain from the sale of the land and trees may be treated as capital gain under section 117(j) of the Internal Revenue Code, provided the recognized gains from all transactions coming within the purview of that section exceed the recognized losses thereunder.' 1946—2 Com.Bull. 31. 1 '§ 117. Capital gains and losses '(a) Definitions. As used in this chapter— '(1) Capital assets. The term 'capital assets' means property held by the taxpayer (whether or not connected with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, or property, used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23(l) * * * or real property used in the trade or business of the taxpayer * * *.' 53 Stat. 50, as amended, 26 U.S.C. § 117(a) (1), 26 U.S.C.A. § 117(a)(1). '(j) Gains and losses from involuntary conversion and from the sale or exchange of certain property used in the trade or business. '(1) Definition of property used in the trade or business. 'For the purposes of this subsection, the term 'property used in the trade or business' means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23(l), held for more than 6 months, and real property used in the trade or business, held for more than 6 months, which is not (A) property of a kind which would properly be includible in the inventory of the taxpayer if on hand at the close of the taxable year, or (B) property held by the taxpayer primarily for sale to customers in the ordinary course of this trade or business. * * * '(2) General Rule. 'If, during the taxable year, the recognized gains upon sales or exchanges of property used in the trade or business * * * exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than 6 months. If such gains do not exceed such losses, such gains and losses shall not be considered as gains and losses from sales or exchanges of capital assets. * * *' 56 Stat. 846, 26 U.S.C. § 117(j), 26 U.S.C.A. § 117(j). 2 I—1 Cum.Bull. 72. 3 S.Rep.No. 781, 82d Cong., 1st Sess. 47.
1112
345 U.S. 528 73 S.Ct. 840 97 L.Ed. 1221 MAYv.ANDERSON. No. 244. Argued Jan. 6, 1953. Decided May 18, 1953. Messrs. Ralph Atkinson, Salem, Ohio, F. W. Springer, East Palestine, Ohio, for appellant. Mr. I. Engle, Waukesha, Wis., for appellee. Mr. Justice BURTON delivered the opinion of the Court. 1 The question presented is whether, in a habeas corpus proceeding attacking the right of a mother to retain possession of her minor children, an Ohio court must give full faith and credit to a Wisconsin decree awarding custody of the children to their father when that decree is obtained by the father in an ex parte divorce action in a Wisconsin court which had no personal jurisdiction over the mother. For the reasons hereafter stated, our answer is no. 2 This proceeding began July 5, 1951, when Owen Anderson, here called the appellee, filed a petition for a writ of habeas corpus in the Probate Court of Columbiana County, Ohio. He alleged that his former wife, Leona Anderson May, here called the appellant, was illegally restraining the liberty of their children, Ronald, Sandra and James, aged, respectively, 12, 8 and 5, by refusing to deliver them to him in response to a decree issued by the County Court of Waukesha County, Wisconsin, February 5, 1947. With both parties and their children before it, the Probate Court ordered that, until this matter be finally determined, the children remain with their mother subject to their father's right to visit them at reasonable times. 3 After a hearing 'on the petition, the stipulation of counsel for the parties as to the agreed statement of facts, and the testimony,' the Probate Court decided that it was obliged by the Full Faith and Credit Clause of the Constitution of the United States1 to accept the Wisconsin decree as binding upon the mother. Accordingly, proceeding to the merits of the case upon the issues presented by the stipulations of counsel, it ordered the children discharged from further restraint by her. That order has been held in abeyance and the children are still with her. The Court of Appeals for Columbiana County, Ohio, affirmed. 91 Ohio App. 557, 107 N.E.2d 358. The Supreme Court of Ohio, without opinion, denied a motion directing the Court of Appeals to certify its record for review, and dismissed an appeal on the ground that no debatable constitutional question was involved. 157 Ohio St. 436, 105 N.E.2d 648. 4 On appeal to this Court, we noted probable jurisdiction. Inasmuch, however, as neither the Court of Appeals nor the Supreme Court of Ohio relied upon the Ohio statute alleged to be the basis of the appeal, we have treated the appeal as a petition for a writ of certiorari, granted pursuant to 28 U.S.C. (Supp. V) § 2103, 28 U.S.C.A. § 2103, while continuing, for convenience, to refer to the parties as appellant and appellee.2 5 The parties were married in Wisconsin and, until 1947, both were domiciled there. After marital troubles developed, they agreed in December, 1946, that appellant should take their children to Lisbon, Columbiana County, Ohio, and there think over her future course. By New Year's Day, she had decided not to return to Wisconsin and, by telephone, she informed her husband of that decision. 6 Within a few days he filed suit in Wisconsin, seeking both an absolute divorce and custody of the children. The only service of process upon appellant consisted of the delivery to her personally, in Ohio, of a copy of the Wisconsin summons and petition. Such service is authorized by a Wisconsin statute for use in an action for a divorce but that statute makes no mention of its availability in a proceeding for the custody of children.3 Appellant entered no appearance and took no part in this Wisconsin proceeding which produced not only a decree divorcing the parties from the bonds of matrimony but a decree purporting to award the custody of the children to their father, subject to a right of their mother to visit them at reasonable times. Appellant contests only the validity of the decree as to custody. See Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, and Kreiger v. Kreiger, 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572, recognizing the divisibility of decrees of divorce from those for payment of alimony. 7 Armed with a copy of the decree and accompanied by a local police officer, appellee, in Lisbon, Ohio, demanded and obtained the children from their mother. The record does not disclose what took place between 1947 and 1951, except that the children remained with their father in Wisconsin until July 1, 1951. He then brought them back to Lisbon and permitted them to visit their mother. This time, when he demanded their return, she refused to surrender them. 8 Relying upon the Wisconsin decree, he promptly filed in the Probate Court of Columbiana County, Ohio, the petition for a writ of habeas corpus now before us. Under Ohio procedure that writ tests only the immediate right to possession of the children. It does not open the door for the modification of any prior award of custody on a showing of changed circumstances. Nor is it available as a procedure for settling the future custody of children in the first instance. 9 'It is well settled that habeas corpus is not the proper or appropriate action to determine, as between parents, who is entitled to the custody of their minor children. 10 'The agreed statement of facts disclosed to the Court of Appeals that the children were in the custody of their mother. There being no evidence that the appellant had a superior right to their custody, that court was fully warranted in concluding that the children were not illegally restrained of their liberty.' In re Corey, 145 Ohio St. 413, 418, 61 N.E.2d 892, 894—895.4 11 The narrow issue thus presented was noted but not decided in People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 615—616, 67 S.Ct. 903, 906, 907, 91 L.Ed. 1133. There a mother instituted a suit for divorce in Florida. She obtained service on her absent husband by publication and he entered no appearance. The Florida court granted her a divorce and also awarded her the custody of their child. There was, therefore, inherent in that decree the question 'whether in absence of personal service the Florida decree of custody had any binding effect on the husband; * * *.' Id., 330 U.S. at page 615, 67 S.Ct. at page 906. We were not compelled to answer it there and a decision on it was expressly reserved. 12 Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody. 13 '(I)t is now too well settled to be open to further dispute that the 'full faith and credit' clause and the act of Congress passed pursuant to it5 do not entitle a judgment in personam to extraterritorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.' Baker v. Baker, Eccles & Co., 242 U.S. 394, 401, and see 403, 37 S.Ct. 152, 155, 61 L.Ed. 386; Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897; D'Arcy v. Ketchum, 11 How. 165, 13 L.Ed. 648. 14 In Estin v. Estin, supra, and Kreiger v. Kreiger, supra, this Court upheld the validity of a Nevada divorce obtained ex parte by a husband, resident in Nevada, insofar as it dissolved the bonds of matrimony. At the same time, we held Nevada powerless to cut off, in that proceeding, a spouse's right to financial support under the prior decree of another state.6 In the instant case, we recognize that a mother's right to custody of her children is a personal right entitled to at least as much protection as her right to alimony. 15 In the instant case, the Ohio courts gave weight to appellee's contention that the Wisconsin award of custody binds appellant because, at the time it was issued, her children had a technical domicile in Wisconsin, although they were neither resident nor present there.7 We find it unnecessary to determine the children's legal domicile because, even if it be with their father, that does not give Wisconsin, certainly as against Ohio, the personal jurisdiction that it must have in order to deprive their mother of her personal right to their immediate possession.8 16 The judgment of the Supreme Court of Ohio, accordingly, is reversed and the cause is remanded to it for further proceedings not inconsistent with this opinion. 17 Reversed and remanded. 18 Mr. Justice CLARK, not having heard oral argument, took no part in the consideration or decision of this case. 19 Mr. Justice FRANKFURTER, concurring. 20 The views expressed by my brother JACKSON make it important that I state, in joining the Court's opinion, what I understand the Court to be deciding and what it is not deciding in this case. 21 What is decided—the only thing the Court decides—is that the Full Faith and Credit Clause does not require Ohio, in disposing of the custody of children in Ohio, to accept, in the circumstances before us, the disposition made by Wisconsin. The Ohio Supreme Court felt itself so bound. This Court does not decide that Ohio would be precluded from recognizing, as a matter of local law, the disposition made by the Wisconsin court. For Ohio to give respect to the Wisconsin decree would not offend the Due Process Clause. Ohio is no more precluded from doing so than a court of Ontario or Manitoba would be, were the mother to bring the children into one of these provinces. 22 Property, personal claims, and even the marriage status, see, e.g., Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, generally give rise to interests different from those relevant to the discharge of a State's continuing responsibility to children within her borders. Children have a very special place in life which law should reflect. Legal theories and their phrasing in other cases readily lead to fallacious reasoning it uncritically transferred to determination of a State's duty towards children. There are, of course, adjudications other than those pertaining to children, as for instance decrees of alimony, which may not be definitive even in the decreeing State, let alone binding under the Full Faith and Credit Clause. Interests of a State other than its duty towards children may also prevail over the interest of national unity that underlies the Full Faith and Credit Clause. But the child's welfare in a custody case has such a claim upon the State that its responsibility is obviously not to be foreclosed by a prior adjudication reflecting another State's discharge of its responsibility at another time. Reliance on opinions regarding out-of-State adjudications of property rights, personal claims or the marital status is bound to confuse analysis when a claim to the custody of children before the courts of one State is based on an award previously made by another State. Whatever light may be had from such opinions, they cannot give conclusive answers. 23 Mr. Justice JACKSON, whom Mr. Justice REED joins, dissenting. 24 The Court apparently is holding that the Federal Constitution prohibits Ohio from recognizing the validity of this Wisconsin divorce decree insofar as it settles custody of the couple's children. In the light of settled and unchallenged precedents of this Court, such a decision can only rest upon the proposition that Wisconsin's courts had no jurisdiction to make such a decree binding upon appellant. Baker v. Baker, Eccles & Co., 242 U.S. 394, 401, 37 S.Ct. 152, 154, 61 L.Ed. 386; Esenwein v. Commonwealth of Pennsylvania ex rel. Esenwein, 325 U.S. 279, 281, 65 S.Ct. 1118, 1119, 89 L.Ed. 1608. 25 A conclusion that a state must not recognize a judgment of a sister commonwealth involves very different considerations than a conclusion that it must do so. If Wisconsin has rendered a valid judgment, the Constitution not only requires every state to give it full faith and credit, but 28 U.S.C. § 1738, 28 U.S.C.A. § 1738, referring to such judicial proceedings, commands that they 'shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.'1 The only escape from obedience lies in a holding that the judgment rendered in Wisconsin, at least as to custody, is void and entitled to no standing even in Wisconsin. It is void only if it denies due process of law. 26 The Ohio courts reasoned that although personal jurisdiction over the wife was lacking, domicile of the children in Wisconsin was a sufficient jurisdictional basis to enable Wisconsin to bind all parties interested in their custody. This determination that the children were domiciled in Wisconsin has not been contested either at our bar or below. Therefore, under our precedents, it is conclusive. Williams v. State of North Carolina, 317 U.S. 287, 302, 63 S.Ct. 207, 215, 87 L.Ed. 279. The husband, plaintiff in the case, was at all times domiciled in Wisconsin; the defendant-wife was a Wisconsin native, was married there and both were domiciled in that State until her move in December 1946, when the parties stipulate that she acquired an Ohio domicile. The children were born in Wisconsin, were always domiciled there, and were physically resident in Wisconsin at all times until December 1946, when their mother took them to Ohio with her. But the Ohio court specifically found that she brought the children to Ohio with the understanding that if she decided not to go back to Wisconsin the children were to be returned to that State. In spite of the fact that she did decide not to return, she kept the children in Ohio. It was under these circumstances that the Wisconsin decree was rendered in February 1947, less than two months after the wife had given up her physical residence in Wisconsin and held the children out of the State in breach of her agreement. 27 The husband subsequently went to Ohio, retrieved the children and took them back to Wisconsin, where they remained with him for four years. Then he voluntarily brought them to Ohio for a visit with their mother, whereupon she refused to surrender them, and he sought habeas corpus in the Ohio courts. In this situation Wisconsin was no meddler reaching out to draw to its courts controversies that arose in and concerned other legal communities. If ever domicile of the children plus that of one spouse is sufficient to support a custody decree binding all interested parties, it should be in this case.2 Cf. Yarborough v. Yarborough, 290 U.S. 202, 210, 54 S.Ct. 181, 184, 78 L.Ed. 269. 28 I am quite aware that in recent times this Court has been chipping away at the concept of domicile as a connecting factor between the state and the individual to determine rights and obligations.3 We are a mobile people, historically on the move, and perhaps the rigid concept of domicile derived by common law from feudal attachment to the land is too rigid for a society so restless as ours. But if our federal system is to maintain separate legal communities, as the Full Faith and Credit Clause evidently contemplates, there must be some test for determining to which of these a person belongs. If, for this purpose, there is a better concept than domicile, we have not yet hit upon it. Abandonment of this ancient doctrine would leave partial vacuums in many branches of the law. It seems to be abandoned here. 29 The Court's decision holds that the state in which a child and one parent are domiciled and which is primarily concerned about his welfare cannot constitutionally adjudicate controversies as to his guardianship. The state's power here is defeated by the absence of the other parent for a period of two months. The convenience of a leave-taking parent is placed above the welfare of the child, but neither party is greatly aided in obtaining a decision. The Wisconsin courts cannot bind the mother, and the Ohio courts cannot bind the father. A state of the law such as this, where possession apparently is not merely nine points of the law but all of them and self-help the ultimate authority, has little to commend it in legal logic or as a principle of order in a federal system. 30 Nor can I agree on principle with the Court's treatment of the question of personal jurisdiction of the wife. I agree with its conclusion and that of the Ohio courts that Wisconsin never obtained jurisdiction of the person of the appellant in this action and therefore the jurisdiction must be rested on domicile of the husband and children. Cf. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278. And I have heretofore expressed the view that such personal jurisdiction is necessary in cases where the domicile is obviously a contrived one or the claim of it a sham. Williams v. State of North Carolina, supra, 317 U.S. at page 311, 63 S.Ct. at page 219; Rice v. Rice, 336 U.S. 674, 676, 69 S.Ct. 751, 752, 93 L.Ed. 957. But here the Court requires personal service upon a spouse who decamps before the State of good-faith domicile can make provision for custody and support of the children still legally domiciled within it. Wisconsin had a far more real concern with the transactions actions here litigated than have many of the divorce-mill forums whose judgments we have commanded their sister states to recognize. 31 In spite of the fact that judges and law writers long have recognized the similarity between the jurisdictional requirements for divorce and for custody,4 this decision appears to equate the jurisdictional requirements for a custody decree to those for an in personam money judgment. One reads the opinion in vain to discover reasons for this choice, unless it is found in the remark that for the wife 'rights far more precious than property will be cut off' in the custody proceeding. The force of this cardiac consideration is self-evident, but it seems to me to reflect a misapprehension as to the nature of a custody proceeding or a revision of the views that have heretofore prevailed. When courts deal with inanimate property by the conventional in rem proceeding, their principal concern is the distribution of rights in that property, rather than with the welfare of the property apart from its ownership claims. But even where dealing solely with property rights, where concern with the 'res' is minimal and concern with the claimants is paramount, courts may exercise jurisdiction in rem over the property without having personal jurisdiction over all of the claimants.5 Only when they seek to render a party liable to some personal performance must they acquire personal jurisdiction.6 32 The difference between a proceeding involving the status, custody and support of children and one involving adjudication of property rights is too apparent to require elaboration. In the former, courts are no longer concerned primarily with the proprietary claims of the contestants for the 'res' before the court, but with the welfare of the 'res' itself. Custody is viewed not with the idea of adjudicating rights in the children, as if they were chattels, but rather with the idea of making the best disposition possible for the welfare of the children. To speak of a court's 'cutting off' a mother's right to custody of her children, as if it raised problems similar to those involved in 'cutting off' her rights in a plot of ground, is to obliterate these obvious distinctions. Personal jurisdiction of all parties to be affected by a proceeding is highly desirable, to make certain that they have had valid notice and opportunity to be heard. But the assumption that it overrides all other considerations and in its absence a state is constitutionally impotent to resolve questions of custody flies in the face of our own cases. The wife's marital ties may be dissolved without personal jurisdiction over her by a state where the husband has a genuine domicile because the concern of that state with the welfare and marital status of its domiciliary is felt to be sufficiently urgent. Certainly the claim of the domiciled parent to relief for himself from the leave-taking parent does not exhaust the power of the state. The claim of children as well as the home-keeping parent to have their status determined with reasonable certainty, and to be free from an incessant tug of war between squabbling parents, is equally urgent. 33 The mother in this case would in all probability not be permanently precluded from attempting to redetermine the custody of the children. If the Wisconsin courts would allow modification of the decree upon a showing of changed circumstances, such modification could be accomplished by another state which acquired jurisdiction over the parties. People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133; cf. Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810. And, of course, no judgment settling custody rights as between the parents would itself prevent any state which may find itself responsible for the welfare of the children from taking action adverse to either parent. No such case is before us. 34 I fear this decision will author new confusions. The interpretative concurrence, if it be a true interpretation, seems to reduce the law of custody to a rule of seize-and-run. I would affirm the decision of the Ohio courts that they should respect the judgment of the Wisconsin court, until it or some other court with equal or better claims to jurisdiction shall modify it. 35 Mr. Justice MINTON, dissenting. 36 The opinion of the Court and the dissent of Mr. Justice JACKSON deal with a jurisdictional question not raised on the record. 37 As I understand the law of Ohio, 'parents are the legal and natural custodians of their minor children and each parent has an equal right to their custody in the absence of an order, judgment, or decree of a court of competent jurisdiction fixing their custody. Section 8032, General Code. It is well settled that habeas corpus is not the proper or appropriate action to determine, as between parents, who is entitled to the custody of their minor children.' In re Corey, 145 Ohio St. 413, 418, 61 N.E.2d 892, 894 895. 38 The instant case was a proceeding in Ohio by habeas corpus brought by the father against the mother for the possession of the minor children. The father could not succeed in this habeas corpus action unless he could show that he had an order of a court of competent jurisdiction awarding him the custody of the children. He produced an authenticated copy of a decree of the County Court of Waukesha County, Wisconsin, valid on its face and unappealed from, which awarded him the custody of the children. It is not contended that this decree is void upon its face, nor did appellant, the mother, challenge its validity in Ohio by any responsive pleading to the petition for habeas corpus. 39 The only question before the Ohio court was whether that court should give full faith and credit to the Wisconsin decree. That unappealed decree was valid on its face, and its validity was not attacked by any pleading. The validity of the decree is not affected by any admission in this case, on or off the record. As far as this record is concerned, the decree of the Wisconsin court was what it purported to be on its face. Since appellant failed to challenge its validity by any pleading, the decree was entitled to full faith and credit in Ohio under Art. IV, § 1 of the United States Constitution. The Ohio court properly accorded the decree full faith and credit, and it was evidence, together with parenthood, which proved the father's right to possession of the children and entitled him to succeed in the proceeding. 40 I would therefore affirm. 1 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' Art. IV, § 1. 2 The state statute alleged to have been drawn in question by appellant as repugnant to the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States was § 7996 of the Ohio General Code of 1910 providing that 'The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto.' The Probate Court was said to have upheld that section as establishing the legal domicile of the children with their father and, on that basis, to have upheld the Wisconsin decree as validly depriving their mother of her custody over her children, although the Wisconsin court never obtained personal jurisdiction over her. 3 '262.12 Publication or service outside state, when permitted. When the summons cannot with due diligence be served within the state, the service of the summons may be made without the state or by publication upon a defendant when it appears from the verified complaint that he is a necessary or proper party to an action or special proceeding as provided in Rule 262.13, in any of the following cases: '(5) When the action is for a divorce or for annulment of marriage. '262.13 Publication or service outside state; * * * mode of service. '(4) In the cases specified in Rule 262.12 the plaintiff may, at his option and in lieu of service by publication, cause to be delivered to any defendant personally without the state a copy of the summons and verified complaint or notice of object of action as the case may require, which delivery shall have the same effect as a completed publication and mailing. * * *' Wis.Stat., 1949. 4 This limitation contrasts with the procedure in states where a court, upon securing the presence before if of the parents and children in response to a writ of habeas corpus, may proceed to determine the future custody of the children. See e.g., People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (New York procedure); Boor v. Boor, 241 Iowa 973, 43 N.W.2d 155; Helton v. Crawley, 241 Iowa 296, 41 N.W.2d 60. 5 See 28 U.S.C. (Supp. V) § 1738, 28 U.S.C.A. § 1738, as developed from the Act of May 26, 1790, 1 Stat. 122. 6 '* * * The fact that the requirements of full faith and credit, so far as judgments are concerned, are exacting, if not inexorable (Sherrer v. Sherrer, supra (334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429)), does not mean, however, that the State of the domicile of one spouse may, through the use of constructive service, enter a decree that changes every legal incidence of the marriage relationship. 'The result in this situation is to make the divorce divisible—to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony.' 334 U.S. at pages 546, 549, 68 S.Ct. at page 1217. 7 By stipulation, the parties recognized her domicile in Ohio. See also, Estin v. Estin, supra; Kreiger v. Kreiger, supra; Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279. For the general rule that in cases of the separation of parents, apart from any award of custody of the children, the domicile of the children is that of the parent with whom they live and that only the state of that domicile may award their custody, see Restatement, Conflict of Laws (1934), §§ 32 and 146, Illustrations 1 and 2. 8 '* * * the weight of authority is in favor of confining the jurisdiction of the court in an action for divorce, where the defendant is a nonresident and does not appear, and process upon the defendant is by substituted service only, to a determination of the status of the parties. * * * This rule of law extends to children who are not within the jurisdiction of the court when the decree is rendered, where the defendant is not a resident of the state of the seat of the court, and has neither been personally served with process nor appeared to the action. (Citing cases.) 'By the authority of the cases supra, a decree of the custody of a minor child, under the circumstances stated, is void.' Weber v. Redding, 200 Ind. 448, 454—455, 163 N.E. 269, 271. See also, Sanders v. Sanders, 223 Mo.App. 834, 837—838, 14 S.W.2d 458, 459 460; Carter v. Carter, 201 Ga. 850, 41 S.E.2d 532. The instant case does not present the special considerations that arise where a parent, with or without minor children, leaves a jurisdiction for the purpose of escaping process or otherwise evading jurisdiction, and we do not have here the considerations that arise when children are unlawfully or surreptitiously taken by one parent from the other. 1 None of the cases involving exceptions to this rule are in point here. See, e.g., Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65. 2 American Law Institute, Restatement, Conflict of Laws, 1934, §§ 117, 144—147. 3 Cf. Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339; State Tax Commission of Utah v. Aldrich, 316 U.S. 174, 62 S.Ct. 1008, 86 L.Ed. 1358; the Dorrance litigation, Dorrance v. Martin, 28 U.S. 678, 56 S.Ct. 949, 80 L.Ed. 1399; In re Dorrance's Estate, 115 N.J.Eq. 268, 170 A. 601; Id., 309 Pa. 151, 163 A. 303. 4 See Goodrich, 'Custody of Children,' 7 Corn.L.Q. 1. 5 Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023; Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897. 6 Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.
34
345 U.S. 565 73 S.Ct. 911 97 L.Ed. 1250 TINDERv.UNITED STATES. No. 113. Argued April 9 and 10, 1953. Decided May 25, 1953. Mr. William W. Koontz, Alexandria, Va., for petitioner. Mr. Murry Lee Randall, Washington, D.C., for respondent. Mr. Justice REED delivered the opinion of the Court. 1 On September 13, 1950, petitioner pleaded guilty to a six-count indictment charging the theft of six separate letters from the mailboxes of the six addressees in violation of 18 U.S.C. § 1708, 18 U.S.C.A. § 1708. Petitioner was sentenced to three years' imprisonment on each count, the sentences to run concurrently. After serving almost a year of his term, petitioner, on August 3. 1951, filed a motion under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, to vacate or correct sentence on the ground that the indictment did not allege that any of the letters stolen from the mailboxes had a value of more than $100, hence that the indictment charged misdemeanors under § 1708, the maximum penalty for each of which was one year, instead of felonies for which the maxmum penalty was five years. The District Court denied petitioner's motion and the Court of Appeals for the Fourth Circuit affirmed. 193 F.2d 720, 722. Both of the courts below held that the misdemeanor provision of § 1708 applies only to thefts of 'any article or thing' which in turn had been taken from a letter or package, and not to thefts of intact units of mail. As this result was in direct conflict with the position taken by the Court of Appeals for the Ninth Circuit in Armstrong v. United States, 187 F.2d 954, we granted certiorari to resolve that conflict. 343 U.S. 976, 72 S.Ct. 1079, 96 L.Ed. 1369. The statute in question appears in the margin.1 2 According to the view of the Government and that adopted by the courts below, the lesser penalty is limited to thefts from mail as opposed to thefts of mail for which the maximum punishment may be imposed. Under the Government's construction, the phrase 'article or thing' does not refer to mail or letters. Thus the one-year maximum sentence becomes appropriate only when mail is received in a manner not prohibited by the statute, and the contents thereof then illegally removed. We do not agree with this distinction. 3 As early as 1810 Congress prohibited and punished mail theft (2 Stat. 598). That statute provided a maximum of seven years' imprisonment for the theft of letters containing 'any article of value,' and a maximum punishment of a fine of $500 for the theft of letters 'not containing any article of value or evidence thereof'. In 1825 the statute was amended to provide for increased penalties for the two offenses and the value distinction was retained (4 Stat. 109). Under an 1872 revision, however, the punishment distinction as to the value or the nature of the mail stolen was eliminated (17 Stat. 318). Under this revision the maximum sentence which could be imposed for mail theft was five years. This over-al maximum of five years was carried over in the 1909 Act (35 Stat. 1125) and in 18 U.S.C. § 317, the antecedent provision of 18 U.S.C. § 1708, 18 U.S.C.A. § 1708, enacted in 1948. In 1948 the entire federal criminal code received comprehensive revision. Among other changes not here pertinent, the 1948 revision added the phrase 'but if the value or face value of any such article or thing does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.' The Reviser's Note on this addition which accompanied the bill and explained the changes to Congress states that '(t)he smaller penalty for an offense involving $100 or less was added.' (18 U.S.C. § 1708, 18 U.S.C.A. § 1708.) This note also called attention to similar adjustments of penalties in §§ 641 and 645, which relate to illegal abstractions of government records, vouchers and other things of value. Nothing was said of the distinction to which the Government would now have us accede.2 4 As was pointed out in the Armstrong decision, 'It would have been a simple matter for the reviser, or Congress, to have made clear, had such been the intent, that stealing 'an article or thing' from an item of mail, leaving the item of mail otherwise intact, is to be regarded as a less serious offense than stealing the item of mail itself. A highly technical distinction of this sort, which could easily have been spelled out, cannot be imposed on the general words 'any such article or thing' in the concluding proviso of Sec. 1708. Those words must be deemed to include any article or thing previously mentioned in Sec. 1708, whether it is described specifically as a 'letter' or generally as 'an article or thing." 187 F.2d 954, 956. 5 Following the Armstrong decision, the Postmaster General and the Attorney General asked Congress to eliminate the misdemeanor provision from § 1708 because the crime of theft of mail had been divided into 'felonies and misdemeanors with the value of the matter stolen as the determining factor.' S.Rep. No. 980, 82d Cong., 1st Sess., pp. 3—4; H.R.Rep. No. 1674, 82d Cong., 2d Sess., pp. 3—5. Subsequent to our granting certiorari, June 9, 1952, the proposal to eliminate the misdemeanor provision was approved, July 1, 1952. 66 Stat. 314. Although Congress thus eliminated the conflict which led us to grant certiorari, the change in the statute can have no effect on a prior conviction such as petitioner's. In our view, under the then wording of § 1708, and its purpose as shown by the Reviser's Notes, petitioner was improperly convicted of a felony. 6 This Court has power to do justice as the case requires.3 28 U.S.C. § 2106, 28 U.S.C.A. § 2106. The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court to correct the sentence. 7 It is so ordered. 8 Reversed and remanded with directions. 9 Mr. Justice BURTON, Mr. Justice CLARK, and Mr. Justice MINTON, dissenting, would affirm the judgment of the Court of Appeals for the Fourth Circuit for the reasons stated in the opinion of that court, 193 F.2d 720. 10 The CHIEF JUSTICE, not having heard all of the oral argument, took no part in the consideration or decision of this case. 1 'Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or 'Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter; or 'Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted— 'Shall be fined not more than $2,000 or imprisoned not more than five years, or both; but if the value or face value of any such article or thing does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.' 2 The Chief Reviser explained the purpose of such changes to the House Committee on Revision of the Laws as follows: 'Changes in Punishment 'Our work revealed many inconsistencies in punishments. Some appeared too lenient and others too harsh when compared with crimes of similar gravity. Our problem was twofold. 'First, we found that in spite of our exact definition of felonies and misdemeanors, 29 punishments were inaccurately labeled, resulting in conflicting court opinions. We solved this problem by omitting from each of the 29 punishments any description of the offense as a felony or misdemeanor, leaving the test as to the kind of crime, to our definitive section. 'Second, we discovered serious disparities in punishment when we considered the nature of various crimes. Before attempting to eliminate these differences we prepared a master table showing the nature of each offense and its punishment. In this way we eliminated many inequalities and brought uniformity out of the conflicts which time had developed.' Hearings on H.R. 5450, 78th Cong., 2d Sess., p. 6. 3 Patterson v. State of Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082; State of Minnesota v. National Tea Co., 309 U.S. 551, 555, 60 S.Ct. 676, 678, 84 L.Ed. 920; Walling v. James V. Reuter, Inc., 321 U.S. 671, 676, 64 S.Ct. 826, 828, 88 L.Ed. 1001.
01
345 U.S. 594 73 S.Ct. 872 97 L.Ed. 1277 TIMES-PICAYUNE PUB. CO. et al.v.UNITED STATES. UNITED STATES v. TIMES-PICAYUNE PUB. CO. et al. Nos. 374, 375. Argued March 11, 1953. Decided May 25, 1953. [Syllabus from pages 594-596 intentionally omitted] Acting Solicitor General Stern, for the United States. Mr. Ashton Phelps, New Orleans, La., for Times-Picayune Co. Mr. Edward O. Proctor, Boston, Mass., for Post Publishing Co., amicus curiae, by special leave of Court. Mr. John T. Cahill, New York City, for 98 Newspapers Publishers amicus curiae, by special leave of Court. Mr. Justice CLARK delivered the opinion of the Court. 1 At issue is the legality under the Sherman Act of the Times-Picayune Publishing Company's contracts for the sale of newspaper classified and general display advertising space. The Company in New Orleans owns and publishes the morning Times-Picayune and the evening States. Buyers of space for general display and classified advertising in its publications may purchase only combined insertions appearing in both the morning and evening papers, and not in either separately.1 The United States filed a civil suit under the Sherman Act, challenging these 'unit' or 'forced combination' contracts as unreasonable restraints of interstate trade, banned by § 1, and as tools in an attempt to monopolize a segment of interstate commerce, in violation of § 2.2 After intensive trial of the facts, the District Court found violations of both sections of the law and entered a decree enjoining the Publishing Company's use of these unit contracts and related arrangements for the marketing of advertising space.3 In No. 374, the Publishing Company appeals the merits of the District Court's holding under the Sherman Act; the Government, in No. 375, seeks relief broader than the District Court's decree. Both appeals come directly here under the Expediting Act.4 2 Testimony in a voluminous record retraces a history of over twenty-five years.5 Prior to 1933, four daily newspapers served New Orleans. The Item Company, Ltd., published the Morning Tribune and the evening Item. The morning Times-Picayune was published by its present owners, and the Daily States Publishing Company, Ltd., an independent organization, distributed the evening States. In 1933, the Times-Picayune Publishing Company purchased the name, good will, circulation, and advertising contracts of the States, and continued to publish it evenings. The Morning Tribune of the Item Co., Ltd., suspended publication in 1941. Today the Times-Picayune, Item, and States remain the sole significant newspaper media for the dissemination of news and advertising to the residents of New Orleans. 3 The Times-Picayune Publishing Company distributes the leading newspaper in the area, the Times-Picayune. The 1933 acquisition of the States did not include its plant and other physical assets; since the States' absorption the Publishing Company has utilized facilities at a single plant for printing and distributing the Times-Picayune and the States. Unified financial, purchasing, and sales administration, in addition to a substantial segment of personnel servicing both publications, results in further joint operation. Although both publications adhere to a single general editorial policy, distinct features and format differentiate the morning Times-Picayune from the evening States. 1950 data reveal a daily average circulation of 188,462 for the Times-Picayune, 114,660 for the Item, and 105,235 for the States. The Times-Picayune thus sold nearly as many copies as the circulation of the Item and States together. 4 Each of these New Orleans publications sells advertising in various forms. Three principal classes of advertising space are sold: classified, general, and local display. Classified advertising, known as 'want ads,' includes individual insertions under various headings; general, also called national, advertising typically comprises displays by national manufacturers or wholesale distributors of brand-name goods; local, or retail, display generally publicizes bargains by local merchants selling directly to the public. From 1924 until the Morning Tribune's demise in 1941, the Item Company sold classified advertising space solely on the unit plan by which advertisers paid a single rate for identical insertions appearing in both the morning and evening papers and could not purchase space in either alone. After the Times-Picayune Publishing Company acquired the States in 1933, it offered general advertisers an optional plan by which space combined in both publications could be bought for less than the sum of the separate rates for each. Two years later it adopted the unit plan of its competitor, the Item Co., Ltd., in selling space for classified ads. General advertisers in the Publishing Company's newspapers were also availed volume discounts since 1940, but had to combine insertions in both publications in order to qualify for the substantial discounts on purchases of more than 10,000 lines per year. Local display ads as early as 1935 were marketed under a still effective volume discount system which for determining the discount bracket in the States permitted cumulation of linage placed in the Times-Picayune as well. In 1950, however, the Publishing Company eliminated all optional plans for general advertisers, and instituted the unit plan theretofore applied solely to classified ads. As a result, since 1950 general and classified advertisers cannot buy space in either the Times-Picayune or the States alone, but must insert identical copy in both or none. Against that practice the Government levels its attack grounded on §§ 1 and 2 of the Sherman Act. 5 After the District Court at the outset denied the Government's motion for partial summary judgment holding the unit contracts per se violations of § 1, the case went to trial and eventuated in comprehensive and detailed findings of fact:6 The Times-Picayune and the States though published by a single publisher, were two distinct newspapers with individual format, news and feature content, reaching separate reader groups in New Orleans. The Times- Picayune, the sole local morning daily which for twenty years outdistanced the States and Item in circulation, published pages, and advertising linage, was the 'dominant' newspaper in New Orleans; insertions in that paper were deemed essential by advertisers desiring to cover the local market. Although the local publishing field permits entry by additional competitors, the Item today is the sole effective daily competition which the Times-Picayune Publishing Company's two newspapers must meet. On the other hand their quest for advertising linage encounters the competition of other media, such as radio, television, and magazines. Nevertheless, the District Court determined, the adoption of unit selling caused a substantial rise in classified and general advertising linage placed in the States, enabling it to enhance its comparative position toward the Item. The District Court found, moreover, that the defendants had instituted the unit system, economically enforceable against buyers solely because of the Times-Picayune's 'dominant' or 'monopoly position,' in order to 'restrain general and classified advertisers from making an untrammeled choice between the States and the Item in purchasing advertising space, and also to substantially diminish the competitive vigor of the Item.'7 6 On the basis of these findings, the District Judge held the unit contracts in violation of the Sherman Act. The contracts were viewed as tying arrangements which the Publishing Company because of the Times-Picayune's (monopoly position' could force upon advertisers.8 Postulating that contracts foreclosing competitors from a substantial part of the market restrain trade within the meaning of § 1 of the Act, and that effect on competition tests the reasonableness of a restraint, the court deemed a substantial percentage of advertising accounts in the New Orleans papers unlawfully 'restrained.'9 Further, a violation of § 2 was found: defendants by use of the unit plan 'attempted to monopolize that segment of the afternoon newspaper general and classified advertising field which was represented by those advertisers who also required morning newspaper space and who could not because of budgetary limitations or financial inability purchase space in both afternoon newspapers.'10 7 Injunctive relief was accordingly decreed. The District Court enjoined the Times-Picayune Publishing Company from (A) selling advertising space in any newspaper published by it 'upon the condition, expressed or implied, that the purchaser of such space will contract for or purchase advertising space in any other newspaper published by it;' (B) refusing to sell advertising space separately in each newspaper which it publishes; (C) using its 'dominant position' in the morning field 'to sell any newspaper advertising at rates lower than those approximating either (1) the cost of producing and selling such advertising or (2) comparable newspaper advertising rates in New Orleans.' Hence these appeals.11 8 The daily newspaper, though essential to the effective functioning of our political system, has in recent years suffered drastic economic decline. A vigorous and dauntless press is a chief source feeding the flow of democratic expression and controversy which maintains the institutions of a free society. Associated Press v. United States, 1945, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013; cf. Wieman v. Updegraff, 1952, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 219; Joseph Burstyn, Inc., v. Wilson, 1952, 343 U.S. 495, 501, 72 S.Ct. 777, 780, 96 L.Ed. 1098. By interpreting to the citizen the policies of his government and vigilantly scrutinizing the official conduct of those who administer the state, an independent press stimulates free discussion and focuses public opinion on issues and officials as a potent check on arbitrary action or abuse. Cf. Grosjean v. American Press Co., 1936, 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660; Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 716—718, 51 S.Ct. 625, 631—632, 75 L.Ed. 1357. The press, in fact, 'serves one of the most vital of all general interests: the dissemination of news from as may different sources, and with as many different facets and colors as is possible. That interest is closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.'12 Yet today, despite the vital task that in our society the press performs, the number of daily newspapers in the United States is at its lowest point since the century's turn: in 1951, 1,773 daily newspapers served 1,443 American cities, compared with 2,600 dailies published in 1,207 cities in the year 1909.13 Moreover, while 598 new dailies braved the field between 1929 and 1950, 373 of these suspended publication during that period—less than half of the new entrants survived.14 Concurrently, daily newspaper competition within individual cities has grown nearly extinct: in 1951, 81% of all daily newspaper cities had only one daily paper; 11% more had two or more publications, but a single publisher controlled both or all.15 In that year, therefore, only 8% of daily newspaper cities enjoyed the clash of opinion which competition among publishers of their daily press could provide. 9 Advertising is the economic mainstay of the newspaper business. Generally, more than two-thirds of a newspaper's total revenues flow from the sale of advertising space. Local display advertising brings in about 44% of revenues; general—14%; classified—13%; circulation, almost the rest.16 Obviously, newspapers must sell advertising to survive. And while newspapers in 1929 garnered 79% of total national advertising expenditures, by 1951 other mass media had cut newspapers' share down to 34.7%.17 When the Times-Picayune Publishing Company in 1949 announced its forthcoming institution of unit selling to general advertisers, about 180 other publishers of morning-evening newspapers had previously adopted the unit plan.18 Of the 598 daily newspapers which broke into publication between 1929 and 1950, 38% still published when that period closed. Forty-six of these entering dailies, however, encountered the competition of established dailies which utilized unit rates; significantly, by 1950, of these 46, 41 had collapsed.19 Thus a newcomer in the daily newspaper business could calculated his chances of survival as 11% in cities where unit plans had taken hold. Viewed against the background of rapidly declining competition in the daily newspaper business, such a trade practice becomes suspect under the Sherman Act. 10 Tying arrangements, we may readily agree, flout the Sherman Act's policy that competition rule the marts of trade. Basic to the faith that a free economy best promotes the public weal is that goods must stand the cold test of competition; that the public, acting through the market's impersonal judgment, shall allocate the Nation's resources and thus direct the course its economic development will take. Yet '(t)ying agreements serve hardly any purpose beyond the suppression of competition.' Standard Oil Co. of California v. United States, 1949, 337 U.S. 293, 305, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371.20 By conditioning his sale of one commodity on the purchase of another, a seller coerces the abdication of buyers' independent judgment as to the 'tied' product's merits and insulates it from the competitive stresses of the open market. But any intrinsic superiority of the 'tied' product would convince freely choosing buyers to select it over others, anyway. Thus '(i)n the usual case only the prospect of reducing competition would persuade a seller to adopt such a contract and only his control of the supply of the tying device, whether conferred by patent monopoly or otherwise obtained, could induce a buyer to enter one.' Id., 337 U.S. at page 306, 69 S.Ct. at page 1058. Conversely, the effect on competing sellers attempting to rival the 'tied' product is drastic: to the extent the enforcer of the tying arrangement enjoys market control, other existing or potential sellers are foreclosed from offering up their goods to a free competitive judgment; they are effectively excluded from the marketplace. 11 For that reason, tying agreements fare harshly under the laws forbidding restraints of trade. Federal Trade Commission v. Gratz, 1920, 253 U.S. 421, 40 S.Ct. 572, 579, 64 L.Ed. 993, decided that a complaint which charged a seller with conditioning his sale of steel ties on purchases of jute bagging did not, because it failed to allege his monopolistic purpose or market control, state an actionable 'unfair method of competition' within the meaning of § 5 of the Federal Trade Commission Act.21 United Shoe Machinery Corp. v. United States, 1922, 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708,22 held, however, that a seller occupying a 'dominant position' in the shoe machinery industry, without more, violated § 3 of the Clayton Act by contracts tying to the lease of his machines the purchase of other types of machinery and incidental supplies.23 Potential lessening of competition, requisite to illegality under § 3, was automatically inferred from the seller's dominating position.' Id., 258 U.S. at pages 457—458, 42 S.Ct. at page 365; Federal Trade Commission v. Sinclair Refining Co., 1923, 261 U.S. 463, 43 S.Ct. 450, 67 L.Ed. 746, extended the principles of Gratz to the Clayton Act; purchases of gasoline were tied to the lease of pumps at nominal rates, but neither monopolistic purpose or power nor potential harm to competition was shown. And, in any event, the 'tie' was voluntary since buyers could take the gasoline without taking the pumps. Id., 261 U.S. at pages 474—475, 43 S.Ct. at page 453. Indeed, the arrangement merely prevented lessees from dispensing other types of gasoline through the lessor's brand pumps and was thus viewed as a means of protecting the goodwill of the lessor's branded gas. See also Pick Mfg. Co. v. General Motors Corp., 1936, 299 U.S. 3, 57 S.Ct. 1, 81 L.Ed. 4.24 The bounds of that doctrine were drawn by International Business Machines Corp. v. United States, 1936, 298 U.S. 131, 56 S.Ct. 701, 80 L.Ed. 1085. When competing sellers could meet the specifications of the 'tied' product, in that case tabulating cards hitched by contract to the sale of computing machines, § 3 of the Clayton Act outlawed the tying arrangement because the 'substantial' amount of commerce in the 'tied' product indicated potential lessening of competition as a result. Id., 289 U.S. at pages 136, 139, 56 S.Ct. at pages 703, 705.25 12 With its decision in International Salt Co. v. United States, 1947, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20, this Court wove the strands of past cases into the law's present pattern. There leases of patented machines for dispensing industrial salt were conditioned on the lessees' purchase of the lessor's salt. A unanimous Court affirmed summary judgment adjudicating the arrangement unlawful under § 3 of the Clayton Act and § 1 of the Sherman Act as well. The patents on their face conferred monopolistic, albeit lawful, market control, and the volume of salt affected by the tying practice was not 'insignificant or insubstantial'. Id., 322 U.S. at page 396, 68 S.Ct. at page 15. Clayton Act violation followed as a matter of course from the doctrines evolved in prior 'tying' cases. See also Standard Oil Co. of California v. United States, 337 U.S. 293, 304—306, 305, notes 7—8, 69 S.Ct. 1051, 1057—1058, 93 L.Ed. 1371. And since the Court deemed it 'unreasonable, per se, to foreclose competitors from any substantial market', neither could the tying arrangement survive § 1 of the Sherman Act. 332 U.S. at page 396, 68 S.Ct. at page 15. That principle underpinned the decisions in the Movie cases, holding unlawful the 'block-booking' of copyrighted films by lessors, United States v. Paramount Pictures, 1948, 334 U.S. 131, 156—159, 68 S.Ct. 915, 928—930, 92 L.Ed. 1260, as well as a buyer's wielding of lawful monopoly power in one market to coerce concessions that handicapped competition facing him in another. United States v. Griffith, 1948, 334 U.S. 100, 106—108, 68 S.Ct. 941, 945—946, 92 L.Ed. 1236. From the 'tying' cases a perceptible pattern of illegality emerges: When the seller enjoys a monopolistic position in the market for the 'tying' product, or if a substantial volume of commerce in the 'tied' product is restrained, a tying arrangement violates the narrower standards expressed in § 3 of the Clayton Act because from either factor the requisite potential lessening of competition is inferred. And because for even a lawful monopolist it is 'unreasonable, per se, to foreclose competitors from any substantial market', a tying arrangement is banned by § 1 of the Sherman Act whenever both conditions are met.26 In either case, the arrangement transgresses § 5 of the Federal Trade Commission Act, since minimally that section registers violations of the Clayton and Sherman Acts. Federal Trade Commission v. Motion Picture Advertising Service Co., 1953, 344 U.S. 392, 395, 73 S.Ct. 361, 363; Federal Trade Commission v. Cement Institute, 1948, 333 U.S. 683, 690—694, 68 S.Ct. 793, 798 800, 92 L.Ed. 1009; Fashion Originators' Guild v. Federal Trade Commission, 1941, 312 U.S. 457, 463, 668, 61 S.Ct. 703, 706, 85 L.Ed. 949. 13 In this case, the rule of International Salt can apply only if both its ingredients are met. The Government at the outset elected to proceed not under the Clayton but the Sherman Act.27 While the Clayton Act's more specific standards illuminate the public policy which the Sherman Act was designed to subserve, e.g., United States v. Columbia Steel Co., 1948, 334 U.S. 495, 507, note 7, 68 S.Ct. 1107, 1114, 92 L.Ed. 1533; Fashion Originators' Guild v. Federal Trade Commission, 1941, 312 U.S. 457, 463, 668, 61 S.Ct. 703, 706, 85 L.Ed. 949, the Government here must measure up to the criteria of the more stringent law. See Standard Oil Co. of California v. United States, 1949, 337 U.S. 293, 297, 311—314, 69 S.Ct. 1051, 1054, 1060—1062, 93 L.Ed. 1371; United Shoe Machinery Corp. v. United States, 1922, 258 U.S. 451, 459—460, 42 S.Ct. 363, 366, 66 L.Ed. 708. 14 Once granted that the volume of commerce affected was not 'insignificant or insubstantial',28 the Times-Picayune's market position becomes critical to the case. The District Court found that the Times-Picayune occupied a 'dominant position' in New Orleans; the sole morning daily in the area, it led its competitors in circulation, number of pages and advertising linage. But every newspaper is a dual trader in separate though interdependent markets; it sells the paper's news and advertising content to its readers; in effect that readership is in turn sold to the buyers of advertising space. This case concerns solely one of these markets. The Publishing Company stands accused not of tying sales to its readers but only to buyers of general and classified space in its papers. For this reason, dominance in the advertising market, not in readership, must be decisive in gauging the legality of the Company's unit plan. Cf. Lorain Journal Co. v. United States, 1951, 342 U.S. 143, 149—150, 152—153, 72 S.Ct. 181, 184—186, 96 L.Ed. 162; United States v. Paramount Pictures, supra, 334 U.S. at pages 166—167, 68 S.Ct. at pages 933—934; Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 1934, 293 U.S. 268, 278—279, 55 S.Ct. 182, 185 186, 79 L.Ed. 356. 15 The 'market,' as most concepts in law or economics, cannot be measured by metes and bounds. Nor does the substance of Sherman Act violations typically depend on so flexible a guide. Section 2 outlaws monopolization of any 'appreciable part' of interstate commerce, and by § 1 unreasonable restraints are banned irrespective of the amount of commerce involved. Lorain Journal Co. v. United States, supra, 342 U.S. at page 151, note 6, 72 S.Ct. at page 185; United States v. Paramount Pictures, supra, 334 U.S. at page 173, 68 S.Ct. at page 936; United States v. Yellow Cab Co., 1947, 332 U.S. 218, 225—226, 67 S.Ct. 1560, 1564—1565, 91 L.Ed. 2010.29 But the essence of illegality in tying agreements is the wielding of monopolistic leverage; a seller exploits his dominant position in one market to expand his empire into the next. Solely for testing the strength of that lever, the whole and not part of a relevant market must be assigned controlling weight. Cf. United States v. Columbia Steel Co., supra, 334 U.S. at page 524, 68 S.Ct. at page 1122. 16 We do not think that the Times-Picayune occupied a 'dominant' position in the newspaper advertising market in New Orleans. Unlike other 'tying' cases where patents or copyrights supplied the requisite market control, any equivalent market 'dominance' in this case must rest on comparative marketing data.30 Excluding advertising placed through other communications media and including general and classified linage inserted in all New Orleans dailies, as we must since the record contains no evidence which could circumscribe a broader or narrower 'market' defined by buyers' habits or mobility of demand,31 the Times-Picayune's sales of both general and classified linage over the years hovered around 40%.32 Obviously no magic inheres in numbers; 'The relative effect of percentage command of a market varies with the setting in which that factor is placed.' United States v. Columbia Steel Co., supra, 334 U.S. at page 528, 68 S.Ct. at page 1124; cf. United States v. National Lead Co., 1947, 332 U.S. 319, 352—353, 67 S.Ct. 1634, 1649—1650, 91 L.Ed. 2077. If each of the New Orleans publications shared equally in the total volume of linage, the Times-Picayune would have sold 33 1/2%; in the absence of patent or copyright control, the small existing increment in the circumstances here disclosed33 cannot confer that market 'dominance' which, in conjunction with a 'not insubstantial' volume of trade in the 'tied' product, would result in a Sherman Act offense under the rule of International Salt. 17 Yet another consideration vitiates the applicability of International Salt. The District Court determined that the Times-Picayune and the States were separate and distinct newspapers, though published under single ownership and control. But that readers consciously distinguished between these two publications does not necessarily imply that advertisers bought separate and distinct products when insertions were placed in the Times-Picayune and the States. So to conclude here would involve speculation that advertisers bought space motivated by considerations other than customer coverage; that their media selections, in effect, rested on generic qualities differentiating morning from evening readers in New Orleans. Although advertising space in the Times-Picayune, as the sole morning daily, was doubtless essential to blanket coverage of the local newspaper readership, nothing in the record suggests that advertisers viewed the city's newspaper readers, morning or evening, as other than fungible customer potential.34 We must assume, therefore, that the readership 'bought' by advertisers in the Times-Picayune was the selfsame 'product' sold by the States and, for that matter, the Item. 18 The factual departure from the 'tying' cases then becomes manifest. The common core of the adjudicated unlawful tying arrangements is the forced purchase of a second distinct commodity with the desired purchase of a dominant 'tying' product, resulting in economic harm to competition in the 'tied' market. Here, however, two newspapers under single ownership at the same place, time, and terms sell indistinguishable products to advertisers; no dominant 'tying' product exists (in fact, since space in neither the Times-Picayune nor the States can be bought alone, one may be viewed as 'tying' as the other); no leverage in one market excludes sellers in the second, because for present purposes the products are identical and the market the same. Cf. Standard Oil Co. (Indiana) v. United States, 1931, 283 U.S. 163, 176—178, 51 S.Ct. 421, 426—427, 75 L.Ed. 926; United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, 424; compare Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 1934, 293 U.S. 268, 278 280, 55 S.Ct. 182, 185—186, 79 L.Ed. 356. In short, neither the rationale nor the doctrines evolved by the 'tying' cases can dispose of the Publishing Company's arrangements challenged here. 19 The Publishing Company's advertising contracts must thus be tested under the Sherman Act's general prohibition on unreasonable restraints of trade. For purposes of § 1, '(a) restraint may be unreasonable either because a restraint otherwise reasonable is accompanied with a specific intent to accomplish a forbidden restraint or because it falls within the class of restraints that are illegal per se.' United States v. Columbia Steel Co., 1948, 334 U.S. 495, 522, 68 S.Ct. 1107, 1121, 92 L.Ed. 1533. Since the requisite intent is inferred whenever unlawful effects are found, United States v. Griffith, 1948, 334 U.S. 100, 105, 108, 68 S.Ct. 941, 944, 946, 92 L.Ed. 1236; United States v. Patten, 1913, 226 U.S. 525, 543, 33 S.Ct. 141, 145, 57 L.Ed. 333, and the rule of International Salt is out of the way, the contracts may yet be banned by § 1 if unreasonable restraint was either their object or effect. Although these unit contracts do not in express terms preclude buyers from purchasing additional space in competing newspapers, the Act deals with competitive realities, not words. United States v. Masonite Corp., 1942, 316 U.S. 265, 280, 62 S.Ct. 1070, 1078, 86 L.Ed. 1461. Thus, while we 'do not think this concession relieves the contract of being a restraint of trade, albeit a less harsh one' than otherwise, International Salt Co. v. United States, 1947, 332 U.S. 392, 397, 68 S.Ct. 12, 15, 92 L.Ed. 20; see United States v. Paramount Pictures, 1948, 334 U.S. 131, 156—158, 68 S.Ct. 915, 928—929, 92 L.Ed. 1260,35 the 'open end' feature of the contracts here minimizes the restraint. For our inquiry to determine reasonableness under § 1 must focus on 'the percentage of business controlled, the strength of the remaining competition (and), whether the action springs from business requirements or purpose to monopolize'. 334 U.S. at page 527, 68 S.Ct. at page 1124; compare Standard Oil Co. of California v. United States, 1949, 337 U.S. 293, 312—313, 69 S.Ct. 1051, 1061 1062, 93 L.Ed. 1371. 20 The record is replete with relevant statistical data. The volume discounts available to local display buyers were not held unlawful by the District Court, and the Government does not assail the practice here. That segment of advertising linage, by far the largest revenue producer of the three linage classes sold by all New Orleans newspapers,36 is thus eliminated from consideration. Consequently, only classified and display linage data can be scrutinized for possible forbidden effects. 21 Classified.—The Item Company, then publishing the Morning Tribune and the evening Item, utilized unit rates for classified advertising in its papers in the year the Times-Picayune Company absorbed the evening States. In 1933, the Item Company's classified linage totaled 2.72 million, compared with the Times-Picayune Company's total of 2.12 million.37 Equalizing the competitive relationship, the Times-Picayune Company in 1935 countered by adopting the unit-rate system of its rival. In that year the Times-Picayune sold 2.84 million, to the Item Company's 2.35 million, lines. While thus evenly matched, the Times-Picayune over the years steadily increased its lead. That Company sold 3.52 million lines in 1938, and 3.76 in 1939; the Item Company totaled 2.23 and 2.18, respectively. In fact the Times-Picayune Publishing Company in every year but 1938 advanced its linage total; since 1936 the Item Company's totals declined yearly, solely excepting 1940. 22 At the end of that year the Item Company's Morning Tribune suspended publication;38 a new local competitive structure took form. In that first year the Item, as sole competitor of the Times-Picayune Company's two dailies, sold 1.23 million lines of classified linage, compared with 2.09 million for the Times-Picayune and 2.08 for the States; the Item's share thus accounted for roughly 23% of the total. Ten years later the Item's share had declined to approximately 20%: in 1950 it sold 2.17 million lines, compared with the Times-Picayune Publishing Company's total linage of 8.91 million, comprising 4.36 million for the Times-Picayune and 4.55 for the States. Measured against the evening States alone, the Item's percentage attrition is comparable. In 1941 it sold 37% of the two evening papers' total linage; by 1950 that share had declined to 32%. Thus, over a period of ten years' competition while facing its morning-evening rival's compulsory unit rate the New Orleans Item's share of the New Orleans classified linage market declined 3%; viewed solely in relation to its evening competitor, its percentage loss amounted to 5%. 23 General Display.—Because the unit rate applicable to general display linage was instituted to become effective 1950, only one year's comparative data are in the record. In 1949, general display linage in all New Orleans dailies totaled 6.84 million, comprising 3.04 million lines in the Times-Picayune, 1.93 million in the States, and 1.87 million in the Item; the Publishing Company ran 73% of the total.39 One year's experience with the unit rate for general display advertising showed a New Orleans total volume of 7.37 million lines, roughly apportioned as 2.96 million in the Times-Picayune, 2.55 million in the States, and 1.85 million in the Item; the Publishing Company's share had risen to 75%. Compared with the States alone, the Item in 1949 accounted for 49% of the two evening papers' total; in 1950, that had declined to 42%. 24 In that year, a reallocation of advertising accounts also too place.40 In 1949, 23.7% of general display advertisers utilized the Times-Picayune Publishing Company's publications exclusively; one year later that percentage had risen to 41%. Concurrently, however, accounts advertising solely in the Times-Picayune declined from 22.7% to 5.8%, and sole advertisers in the States dropped from 2% to .4%. On the other hand, in 1950 10.6%, compared with 9.6% the year before, of general display accounts inserted solely in the Item; and the segment of advertising accounts inserting in all three publications rose from 30.4% in 1949 to 39% in the following year. In fact, while in 1949 only 51.6% of general display accounts utilized the Item either exclusively or in conjunction with other New Orleans dailies, one year later 52.8% of the accounts so patronized the Item. 25 The record's factual data, in sum, do not demonstrate that the Publishing Company's advertising contracts unduly handicapped its extant competitor, the Item. In the early years when four-cornered newspaper competition for classified linage prevailed in New Orleans, the ascendancy of the Publishing Company's papers over their morning-evening competitor soon became manifest. With unit plan pitted on even terms against unit plan, over the years the local market pattern steadily evolved from the Times-Picayune Company's rise and the Item Company's decline. With the Morning Tribune's demise in 1940, the market shrank but the pattern remained. The Item continued its gradually declining share of the market, though in fact the Times-Picayune's unit rate for 'classified' between 1940 and 1950 coincided with a reversal of the trend marking the Item's absolute volume decline. Even less competitive hurt is discernible from the Publishing Company's unit rate for general display linage. True, in the single recorded year of its existence the combination plan did diminish by 7% the Item's share of linage if measured solely against the States. Versus the linage sold by the Publishing Company in its two newspapers, however, the Item's share of the total market declined but 2%. That apparent incongruity is simply explained: Compared with 1949 monthly volume data, the unit rate in each of the 11 months of its operation in 1950 drew linage away from the Times-Picayune and toward the States.41 In effect, the Publishing Company's unit plan merely reallocated the linage sold by its two constituent papers. And not only did the unit plan take from the Times-Picayune and give to the States. Apparently it also led more advertisers to insert in the Item, which sold general display space to a proportionately greater number of accounts in 1950 than in 1949. 26 Meanwhile the Item flourishes. The ten years preceding this trial marked its more than 75% growth in classified linage. Between 1946 and 1950 its general display volume increased almost 25%. The Item's local display linage is twice the equivalent linage in the States.42 And 1950, the Item's peak year for total linage comprising all three classes of advertising, marked its greatest circulation in history as well. In fact, since in newspapers of the Item's circulation bracket general display and classified linage typically provide no more than 3i% of total revenues, the demonstrated diminution of its New Orleans market shares in these advertising classes might well not have resulted in revenue losses exceeding 1%.43 Moreover, between 1943 and 1949 the Item earned over.$1.4 million net before taxes, enabling its then publisher in the latter year to transfer his equity at a net profit of $600,000. The Item, the alleged victim of the Times-Picayune Company's challenged trade practices, appeared, in short, to be doing well. 27 The record in this case thus does not disclose evidence from which demonstrably deleterious effects on competition may be inferred. To be sure, economic statistics are easily susceptible to legerdemain, and only the organized context of all relevant factors can validly translate raw data into logical cause and effect. But we must take the record as we find it, and hack through the jungle as best we can. It may well be that any enhancement of the Times-Picayune's market position during the period of the assailed arrangements resulted from better service or lower prices, or was due to superior planning initiative or managerial skills;44 conversely, it is equally possible that but for the adoption of the unit contracts its market position might have turned for the worse. Nor can we be certain that the challenged practice, though not destructive of existing competition, did not abort yet unborn competitors equally within the concern of the Sherman Act. See United States v. Griffith, 1948, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236; American Tobacco Co. v. United States, 1946, 328 U.S. 781, 814, 66 S.Ct. 1125, 1141, 90 L.Ed. 1975; Associated Press v. United States, 1945, 326 U.S. 1, 13, 65 S.Ct. 1416, 1421, 89 L.Ed. 2013. But this suit was not brought to adjudicate a trade practice as banned by specific statutory prohibitions which by a clearly defined public policy dispense with difficult standards of economic proof. Compare Standard Oil Co. of California v. United States, 1949, 337 U.S. 293, 311—313, 69 S.Ct. 1051, 1060—1062, 93 L.Ed. 1371. And the case has not met the per se criteria of Sharman Act § 1 from which proscribed effect automatically must be inferred. Cf. International Salt Co. v. United States, 1947, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20. Under the broad general policy directed by § 1 against unreasonable trade restraints, guilt cannot rest on speculation; the Government here has proved neither actual unlawful effects nor facts which radiate a potential for future harm. 28 While even otherwise reasonable trade arrangements must fall if conceived to achieve forbidden ends, legitimate business aims predominantly motivated the Publishing Company's adoption of the unit plan. Because the antitrust laws strike equally at nascent and accomplished restraints of trade, monopolistic designs as well as results are reached by the prohibitions of the Sherman Act. United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 224, note 59, 60 S.Ct. 811, 845, 84 L.Ed. 1129; United States v. Trenton Potteries Co., 1927, 273 U.S. 392, 402, 47 S.Ct. 377, 381, 71 L.Ed. 700. The unit rate for classified advertising, however, was adopted in 1935 obviously to counteract the competition of the Item and Morning Tribune which confronted the Times-Picayune Publishing Company with an established unit rate. To be sure, an unlawful trade practice may not be justified as an emulation of another's illegal plan. Cf. Federal Trade Commission v. A. E. Staley Mfg. Co., 1945, 324 U.S. 746, 753—754, 65 S.Ct. 971, 974 975, 89 L.Ed. 1338. But that factor is certainly relevant to illuminate ambiguous intent, particularly when planned injury to that other competitor is the crux of the charge. In any event, uncontradicted testimony suggests that unit insertions of classified ads substantially reduce the publisher's overhead costs.45 Approximately thirty separate operations are necessary to translate an advertiser's order into a published line of print. A reasonable price for a classified ad is necessarily low. And the Publishing Company processed about 2,300 classified ads for publication each day. Certainly a publisher's steps to rationalize that operation do not bespeak a purposive quest for monopoly or restraint of trade. 29 Similarly, competitive business considerations apparently actuated the adoption of the unit rate for general display linage in 1950. At that time about 180 other publishers, the vast majority of morning-evening owners, had previously instituted similar unit plans. Doubtless, long-tolerated trade arrangements acquire no vested immunity under the Sherman Act; no prescriptive rights accrue by the prosecutor's delay. Cf. United States v. Socony-Vacuum Oil Co., supra, 310 U.S. at pages 225—228, 60 S.Ct. at pages 846—847. That consideration, however, is not wholly irrelevant when monopolistic purpose rather than effect remains to be gauged. Ibid. By adopting the unit plan for general display linage at the time it did, the Publishing Company devised not a novel restrictive scheme but aligned itself with the industry's guide, legal or illegal in particular cases that is found to be. Moreover, the unit rate was viewed as a competitive weapon in the rivalry for national advertising accounts. Lower milline rates visualized as a consequence of unit insertions might attract national linage from advertisers utilizing newspapers in other cities, as well as counteract a national advertisers' trend away from newspapers toward other mass communications media.46 In summary, neither unlawful effects nor aims are shown by the record.47 30 Consequently, no Sherman Act violation has occurred unless the Publishing Company's refusal to sell advertising space except en bloc, viewed alone, constitutes a violation of the Act. Refusals to sell, without more, do not violate the law.48 Though group boycotts, or concerted refusals to deal, clearly run afoul of § 1, kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 1951, 340 U.S. 211, 214, 71 S.Ct. 259, 261, 95 L.Ed. 219; Associated Press v. United States, 1945, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013; see United States v. Columbia Steel Co., 1948, 334 U.S. 495, 522, 68 S.Ct. 1107, 1121, 92 L.Ed. 1533, different criteria have long applied to qualify the rights of an individual seller. Beginning with United States v. Colgate & Co., 1919, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, this Court's decisions have recognized individual refusals to sell as a general right, though 'neither absolute nor exempt from regulation.' Lorain Journal Co. v. United States, 1951, 342 U.S. 143, 155, 72 S.Ct. 181, 187, 96 L.Ed. 162. If accompanied by unlawful conduct or agreement, or conceived in monopolistic purpose or market control, even individual sellers' refusals to deal have transgressed the Act. Lorain Journal Co. v. United States, supra; United States v. Bausch & Lomb Optical Co., 1944, 321 U.S. 707, 721—723, 64 S.Ct. 805, 812—813, 88 L.Ed. 1024; Eastman Kodak Co. v. Southern Photo Materials Co., 1927, 273 U.S. 359, 375, 47 S.Ct. 400, 404, 71 L.Ed. 684; United States v. A. Schrader's Son, Inc., 1920, 252 U.S. 85, 99, 40 S.Ct. 251, 253, 64 L.Ed. 471; cf. American Tobacco Co. v. United States, 1946, 328 U.S. 781, 808, 66 S.Ct. 1125, 1138, 90 L.Ed. 1575; Federal Trade Commission v. Beech-Nut Packing Co., 1922, 257 U.S. 441, 453—455, 42 S.Ct. 150, 154—155, 66 L.Ed. 307.49 Still, although much hedged about by later cases, Colgate's principle protects the Times-Picayune Publishing Company's simple refusal to sell advertising space in the Times-Picayune or States separately unless other factors destroy the limited dispensation which that case confers. 31 In our view, however, no additional circumstances bring this case within § 1. Though operating two constituent newspapers, the Times-Picayune is a single corporation, and the Government in the District Court abandoned a charge of unlawful concert among the corporate officers.50 With the advertising contracts in this proceeding viewed as in themselves lawful and no further elements of combination apparent in the case, § 2 criteria must become dispositive here. 32 An insufficient showing of specific intent vitiates this part of the Government's case. While the completed offense of monopolization under § 2 demands only a general intent to do the act, 'for no monopolist monopolizes unconscious of what he is doing', a specific intent to destroy competition or build monopoly is essential to guilt for the mere attempt now charged. United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, 431 432; United States v. Griffith, 1948, 334 U.S. 100, 105, 68 S.Ct. 941, 944, 92 L.Ed. 1236; American Tobacco Co. v. United States, 1946, 328 U.S. 781, 814, 66 S.Ct. 1125, 1141, 90 L.Ed. 1575; Swift & Co. v. United States, 1905, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518. This case does not demonstrate an attempt by a monopolist established in one area to nose into a second market, so that past monopolistic success both enhances the probability of future harm and supplies a motivation for further forays. Cf. United States v. Griffith, supra; Swift & Co. v. United States, supra. And unlike Lorain Journal Co. v. United States, 1951, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162, where a single newspaper's refusal to sell space to advertisers unless they forewent advertising over a competing local radio station manifested 'bold, relentless, and predatory commercial behavior', id., 342 U.S. at page 149, 72 S.Ct. at page 184, no remotely comparable charge is borne out here. This branch of the Government's case comprised allegations that the Publishing Company's acquisition of the States in 1933 was one element in a cool and calculated quest for monopoly control; that the Company deliberately operated the evening States at a financial loss to the detriment of the competing Item; and that it interfered with the Item's distribution on the streets of New Orleans. The District Court, and much evidence supports its conclusions, determined that the 1933 purchase of the States then seemed a legitimate means of business expansion; assumed that the Company's cost and revenue allocations between its two publications were mere bookkeeping transactions without economic significance; and concluded that the Company rather than obstruct street sales of the Item merely sought to assure equal treatment by news vendors of the Item and States.51 Because these pillars of the Government's § 2 case thus collapsed in the District Court, only the adoption of the unit rates remains to support the alleged violation of § 2 of the Sherman Act. Since we have viewed that step as predominantly motivated by legitimate business aims, this record cannot bear out the specific intent essential to sustain an attempt to monopolize under § 2. 33 We conclude, therefore, that this record does not establish the charged violations of § 1 and § 2 of the Sherman Act. We do not determine that unit advertising arrangements are lawful in other circumstances or in other proceedings. Our decision adjudicates solely that this record cannot substantiate the Government's view of this case. Accordingly, the District Court's judgment must be reversed. 34 Reversed. 35 Mr. Justice BURTON, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice MINTON join, dissenting. 36 The majority opinion seeks to avoid the effect of United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236, and of International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20, by taking the position that the Times-Picayune does not enjoy a 'dominant position' in the general newspaper advertising market of New Orleans, including all three papers, as a single market. The complaint, however, is not and need not be dependent upon the relation of the Times-Picayune to that entire market. 37 The complaint is that the Times-Picayune enjoys a distinct, conceded and complete monopoly of acess to the morning newspaper readers in the New Orleans area and that it uses that monopoly to restrain unreasonably the competition between its evening newspaper, the New Orleans States, and the independent New Orleans Item, in the competitive field of evening newspaper advertising. Insistence by the Times-Picayune upon acceptance of its compulsory combination advertising contracts makes payment for, and publication of, classified and general advertising in its own evening paper an inescapable part of the price of access to the all-important columns of the single morning paper. I agree with the District Court that such conduct violates the Sherman Act under the circumstances here presented. See also, Fed.Rules Civ.Proc., 52(a), 28 U.S.C.A., 'Findings of fact shall not be set aside unless clearly erroneous * * *' and Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162. In view of the disposition made of this case by the majority, it is not necessary to discuss the terms of the decree. 1 On Sundays the Times-Picayune Publishing Company also distributes the Times-Picayune-States. Under the existing unit plan, general display advertisers alternatively may insert in a combination of either daily paper with the Sunday paper. Additionally, the Company's unit plan for classified advertising excludes some advertising, known as 'over-the-river' classified, placed from a small local area. As neither the parties nor the District Court attached any significance to these exceptions to the challenged unit rates for general display and classified advertising space in the Publishing Company's daily papers, we mention them solely for completeness. 2 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal: * * *.' 15 U.S.C. § 1, 15 U.S.C.A. § 1. 'Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, * * *.' 15 U.S.C. § 2, 15 U.S.C.A. § 2. 'The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of (this Act); and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. * * *' 15 U.S.C. § 4, 15 U.S.C.A. § 4. The complaint named as defendants the Times-Picayune Publishing Company and four of its officers. Two of these individuals remain as parties in these appeals, one died after the appeals were filed, and the District Court dismissed the complaint as to another. For convenience we refer to the former parties defendant as the 'Times-Picayune Publishing Company' or 'Publishing Company.' 3 D.C.E.D.La.1952, 105 F.Supp. 670. 4 15 U.S.C. (Supp. V) § 29, 15 U.S.C.A. § 29. Probable jurisdiction was noted on November 10, 1952. 5 The printed record here comprises 1,644 pages of testimony and exhibits of various degrees of pertinence to the issues. 6 See R. 1252—1261. 7 Fdg. 31; cf. 105 F.Supp. at page 678. 8 Ibid. 9 Id., 105 F.Supp. at pages 678—679. 10 Id., 105 F.Supp. at page 681. 11 In the light of this Court's broad interpretation of those relevant concepts, it is now beyond dispute that the activities challenged in this case are sufficiently 'trade or commerce' relating to the interstate economy to fall under the wide sweep of the Sherman Act. Cf., e.g., Lorain Journal Co. v. United States, 1951, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162; United States v. National Ass'n of Real Estate Boards, 1950, 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007; Mandeville Island Farms v. American Crystal Sugar Co., 1948, 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328; United States v. Frankfort Distilleries, 1945, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951; United States v. South-Eastern Underwriters Ass'n, 1944, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440; Wickard v. Filburn, 1942, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 1934, 293 U.S. 268, 55 S.Ct. 182, 79 L.Ed. 356. 12 Learned Hand, J., in United States v. Associated Press, D.C.S.D.N.Y.1943, 52 F.Supp. 362, 372, affirmed, 1945, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013. 13 Editor & Publisher 1952 International Yearbook Number, p. 17; Comment, Local Monopoly in the Daily Newspaper Industry, 61 Yale L.J. 948, 949 (1952), a comprehensive industry study. See also Ray, Economic Forces as Factors in Newspaper Concentration, 29 Journ.Q. 31 (1952); Ray, Competition in the Newspaper Industry, 15 J. Marketing 444 (1951); Nixon, Concentration and Absenteeism in Daily Newspaper Ownership, 22 Journ.Q. 97 (1945). 14 American Newspaper Publishers Association, Newspaper Mortality Since 1929 (Bulletin No. 5203, July 27, 1950). Demise of individual newspapers occurred mainly through merger with other publications or outright suspension of publication. 15 61 Yale L.J., at 950. 16 Id., at 977. Some small dailies also derive income from miscellaneous sources such as job printing. In this case the District Court found that advertising and circulation accounted for approximately 98% of New Orleans newspapers' total revenues. Fdg. 27. 17 Mass Communications (Schramm ed. 1949), 549; Printers' Ink, August 8, 1952, p. 35. And see Borden, Taylor and Hovde, National Advertising in Newspapers, 33 et seq. (1946). 18 Fdg. 26. 19 Comparison between Bulletin, note 14, supra, at tables 2 and 3, and Editor & Publisher International Yearbook Numbers 1929 to 1953. 20 See Miller, Unfair Competition, 199 et seq. (1941); Lockhart and Sacks, The Relevance of Economic Factors in Determining Whether Exclusive Arrangements Violate Section 3 of the Clayton Act, 65 Harv.L.Rev. 913, 942 et seq. (1952); Note, 49 Col.L.Rev. 241, 246 (1949); cf. Edwards, Maintaining Competition, 175—178 (1949); Watkins, Public Regulation of Competitive Practices in Business Enterprise, 220 et seq. (1940). 21 'Unfair methods of competition in commerce * * * are hereby declared unlawful.' 15 U.S.C. § 45, 15 U.S.C.A. § 45. In the Gratz case, decided on a point of pleading, the Court observed that the 'complaint contains no intimation that Warren, Jones & Gratz did not properly obtain their ties and bagging as merchants usually do; the amount controlled by them is not stated; nor is it alleged that they held a monopoly of either ties or bagging or had ability, purpose or intent to acquire one.' 253 U.S. at page 428, 40 S.Ct. at page 575. 'All question of monopoly or combination', therefore, was 'out of the way'. Ibid. 22 United States v. United Shoe Machinery Co., 1918, 247 U.S. 32, 38 S.Ct. 473, 62 L.Ed. 968, is not relied on by the parties. 23 'It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States * * * or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.' 15 U.S.C. § 14, 15 U.S.C.A. § 14. That section relates to simple exclusive dealing arrangements, cf., e.g., Standard Oil Co. of California v. United States, 1949, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371, not involved in this case, as well as to tying sales. For purposes of the Clayton Act, the requisite condition not to deal in the goods of another may be inferred from the practical effects of the tying arrangement. International Business Machines Corp. v. United States, 1936, 298 U.S. 131, 135, 56 S.Ct. 701, 703, 80 L.Ed. 1085; Judson L. Thomson Mfg. Co. v. Federal Trade Commission, 1 Cir., 1945, 150 F.2d 952, 956; Signode Steel Strapping Co. v. Federal Trade Commission, 4 Cir., 1942, 132 F.2d 48, 52; Lord v. Radio Corp. of America, D.C.1928, 24 F.2d 565, 568. Cf. Federal Trade Commission v. Sinclair Refining Co., 1923, 261 U.S. 463, 473—474, 43 S.Ct. 450, 453, 67 L.Ed. 746. 24 Affirming, per curiam, 7 Cir., 1935, 80 F.2d 641. 25 See also Signode Steel Strapping Co. v. Federal Trade Commission, 4 Cir., 1942, 132 F.2d 48, 54; Judson L. Thomson Mfg. Co. v. Federal Trade Commission, 1 Cir., 1945, 150 F.2d 952, 958. 26 Dealing with a monopolization offense under Sherman Act § 2, a charge not raised or considered here, the Court in United States v. Griffith, 1948, 334 U.S. 100, 106—108, 68 S.Ct. 941, 945, 92 L.Ed. 1236, pointedly observed: 'Anyone who owns and operates the single theatre in a town, or who acquires the exclusive right to exhibit a film, has a monopoly in the popular sense. But he usually does not violate § 2 of the Sherman Act unless he has acquired or maintained his strategic position, or sought to expand his monopoly, or expanded it by means of those restraints of trade which are cognizable under § 1. * * * (T)he use of monopoly power, however, lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful. * * * If monopoly power can be used to begat monopoly, the Act becomes a feeble instrument indeed.' See also Levi, A Two-Level Anti-Monopoly Law, 47 Northwestern U.L.Rev. 567, 580—585 (1952). 27 On oral argument here, the Government explanatorily referred to an early informal Federal Trade Commission opinion to the effect that advertising space was not a 'commodity' within the meaning of § 2 of the Clayton Act (cf. note 23, supra). 81 Cong.Rec.App. 2336—2337. Cf. Fleetway, Inc., v. Public Service Interstate Transp. Co., 3 Cir., 1934, 72 F.2d 761; United States v. Investors Diversified Services, D.C.1951, 102 F.Supp. 645. We express no views on that statutory interpretation. Compare note 11, supra. 28 The District Court in this case did not find the volume of commerce affected by the restraint, but determined solely that a substantial percentage of advertising accounts in New Orleans papers was restrained by the Publishing Company's unit plan. Fdg. 30; cf. Fdg. 22. In view of our disposition of this case we may assume, though not deciding, that the Sherman Act's substantiality test was met. 29 See also United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 224, note 59, 60 S.Ct. 811, 845, 84 L.Ed. 1129; Gamco, Inc., v. Providence Fruit & Produce Bldg., 1 Cir., 1952, 194 F.2d 484; White Bear Theatre Corp. v. State Theatre Corp., 8 Cir., 1942, 129 F.2d 600. 30 'A patent, * * * although in fact there may be many competing substitutes for the patented article, is at least prima facie evidence of (market) control.' Standard Oil Co. of California v. United States, 1949, 337 U.S. 293, 307, 69 S.Ct. 1051, 1059, 93 L.Ed. 1371; Cf. id., 337 U.S. at page 303, 69 S.Ct. at page 1057; Oxford Varnish Corp. v. Ault & Wiborg Corp., 6 Cir., 1936, 83 F.2d 764, 766; Miller, Unfair Competition, 199 (1941); Lockhart and Sacks, note 20, supra, at 943—944; Note, 49 Col.L.Rev. 241, 243 (1949). 31 For every product, substitutes exist. But a relevant market cannot meaningfully encompass that infinite range. The circle must be drawn narrowly to exclude any other product to which, within reasonable variations in price, only a limited number of buyers will turn; in technical terms, products whose 'cross-elasticities of demand' are small. Useful to that determination is, among other things, the trade's own characterization of the products involved. The advertising industry and its customers, for example, markedly differentiate between advertising in newspapers and in other mass media. See, e.g., Frey, Advertising (2d ed. 1953), cc. 12, 15; Duffy, Advertising Media and Markets (2d ed. 1951), cc. 3, 4; Hepner, Effective Advertising, c. 20 (1949); Borden, Taylor and Hovde, National Advertising in Newspapers, passim (1946); Sandage, Advertising Theory and Practice (3d ed. 1948), cc. XX, XXI. 32 See tables, notes 37 and 39, infra. 33 Cf., e.g., situations where several competitors together controlling a large share of the market acting individually or in concert adopt an identical trade practice. See Federal Trade Commission v. Motion Picture Advertising Service Co., 1953, 344 U.S. 392, 73 S.Ct. 361; Signode Steel Strapping Co. v. Federal Trade Commission, 4 Cir., 1942, 132 F.2d 48, 54. And, obviously, if a producer controlling an even lesser share than here is ringed by numerous smaller satellites together accounting for the rest, his mastery of the market is greater than were he facing fierce rivalry of other large sellers. Cf. United States v. National Lead Co., 1947, 332 U.S. 319, 346—348, 352—353, 67 S.Ct. 1634, 1646 1648, 1649—1650, 91 L.Ed. 2077; United States v. Columbia Steel Co., 1948, 334 U.S. 495, 527—528, 68 S.Ct. 1107, 1124, 92 L.Ed. 1533. Fewness of sellers, on the other hand, may facilitate concerted action. See Fellner, Competition Among the Few, passim (1949); Stigler, The Theory of Price, 228 et seq. (Rev. ed. 1952.) 34 In fact, a survey (R. 1484) in 1940 disclosed that 27.6% of States home carrier subscribers subscribed to the Times-Picayune by home carrier as well 35 In International Salt, the lessor's tying arrangement permitted the lessee's purchase of the 'tied' product in the open market whenever the lessor declined to match the going market price. That, this Court thought, 'does not avoid the stifling effect of the agreement on competition. The (lessor) had at all times a priority on the business at equal prices.' 332 U.S. at page 397, 68 S.Ct. at page 15. And the 'block-booking' found unlawful in the Paramount case did not, of course, impose any express restrictions on licensees desiring to acquire additional films elsewhere. In fact, by specifying that a particular amount of the 'tied' product be taken and that amount covers the buyer's total requirements, a tying arrangement may achieve a result equivalent to total exclusion of other sellers without the formality of expressly saying so. See also note 23, supra. 36 See 61 Yale L.J., at 977, n. 162; note 43, infra. 37 These and the following classified advertising data are derived from the table below (R. 1448): Classified Advertising Linage Carried by New Orleans Daily Newspapers, 1933-1950 Times- Picayune States Item Tribune Morning Evening Evening Morning 1933...... 1,484,740 633,332 1,369,729 1,349,577 1934...... 1,344,479 642,347 1,185,832 1,142,753 1935...... 1,490,316 1,344,849 1,180,850 1,169,733 1936...... 1,789,838 1,786,773 1,308,983 1,298,880 1937...... 1,832,728 1,834,845 1,252,840 1,228,357 1938...... 1,761,830 1,759,477 1,113,160 1,113,115 1939...... 1,881,673 1,882,970 1,097,277 1,086,777 1940...... 1,954,535 1,955,117 1,277,140*1,248,712 1941...... 2,085,566 2,083,812 1,231,540 1942...... 1,954,870 1,957,057 910,275 1943...... 2,849,190 2,843,097 1,241,787 1944...... 3,021,616 3,027,236 1,857,741 1945...... 3,246,566 3,265,686 1,899,926 1946...... 3,930,313 4,083,664 2,181,640 1947...... 4,353,943 4,507,427 2,210,193 1948...... 4,501,599 4,664,403 2,437,268 1949...... 4,271,302 4,420,193 2,232,617 1950...... 4,357,713 4,549,238 2,166,518 * Morning Tribune discontinued (January 1941). 38 This record contains no evidence explaining the Morning Tribune's demise. We must therefore assume that the Times-Picayune Publishing Company's challenged trade practices are in no way linked to the suspension of that competing daily newspaper. 39 All general display advertising data are derived from the table below (R. 1450): General Display Advertising Linage Carried by New Orleans Daily Newspapers, 1949-1950 Times- Picayune States Item Morning Evening Evening 1949- Monthly Totals Jan........ 190,708. 130,761 110,940 Feb........ 231,656. 158,252 154,008 March...... 305,782. 205,740 183,383 April...... 295,603. 179,186 164,288 May........ 282,080. 171,509 177,725 June....... 275,249. 162,481 165,681 July....... 227,896. 136,380 133,669 Aug........ 180,019. 118,031 124,768 Sept....... 248,078. 154,362 151,187 Oct........ 291,072. 200,552 181,548 Nov........ 281,356. 173,898 157,516 Dec........_228,701._143,780 _165,741 Total. 3,038,200. 1,934,932 1,870,454 1950- Monthly Totals Jan........ 237,517. 171,564 176,184 Feb*. ...... 229,367. 166,536 167,309 March...... 283,568. 210,413 164,734 April...... 262,997. 199,803 162,523 May........ 276,036. 229,662 154,058 June....... 260,248. 222,657 170,420 July....... 213,550. 194,800 121,387 Aug........ 181,522. 176,400 115,256 Sept....... 241,167. 221,574 147,051 Oct........ 300,757. 293,723 158,052 Nov........ 265,956. 266,869 168,339 Dec........_211,735._196,794 _148,630 Total. 2,964,420. 2,550,795 1,853,943 * Unit rate became effective on Feb. 1, 1950. 40 Data are derived from tables and graphs at R. 1453—1456. 41 See table at note 39, supra. 42 Media Records, 11 (1950). 43 For the average daily newspaper of greater than 100,000 circulation, a 1951 industry survey revealed the following typical percentage sources of total revenues (Editor & Publisher, April 12, 1952, p. 74): Local display.................. 37.24% General display................ 16.98% Classified advertising......... 14.60% Circulation.................... 29.47% A 3% decline in classified advertising, accounting for 14.6% of total revenues, and a 2% loss in general display, responsible for 16.98% of revenues, would amount to a total revenue loss of .78%. Compare Federal Trade Commission v. Morton Salt Co., 1948, 334 U.S. 37, 68 S.Ct. 822, 92 L.Ed. 1196, where the composition of a buyer's inventory necessitated protection against competitive harm in the purchasing of even a fractional part of his stock in trade. Id., 334 U.S. at page 49, 69 S.Ct. at page 829. 44 The record does, in fact, contain evidence demonstrating that the Times-Picayune Publishing Company's milline rates (cost to advertisers of one agate line per million circulation) ranged roughly from $2.14 to $1.96, compared to the Item's corresponding rates from $2.96 to $2.58. R. 296, 1115. Moreover, though no inference necessarily flows from that fact, the Item changed ownership at least twice in the past twenty years. 45 R. 1127—1129. Cf. Borden, Taylor and Hovde, National Advertising in Newspapers, 461—462 (1946). Obviously, equivalent economies flow from voluntary unit insertions. 46 But cf. id., at 461—464; Nixon, Concentration and absenteeism in Daily Newspaper Ownership, 22 Journ.Q. 97, 110—113 (1945), for advertisers' reactions to unit rates. 47 The Government places much emphasis on a memorandum prepared by the Publishing Company's advertising representatives, referring to the Company's adoption of the unit plan as one way 'to eliminate to a great extent the deleterious selling on the part of our evening contemporary, which, in the long run, is not to the best interests of the manufacturer.' As pointed out by the District Court, however, the author of the memorandum explained that 'in a number of cases * * * the advertising agencies favored the compulsory or unit rate, because once an agency had made its selection or its recommendation of media to the advertiser, the agency could resist any pressure brought to make a change in media by pointing to the unit rate as making such change impossible.' 105 F.Supp. at pages 675—676. That explanation accords with prevailing agency practices and attitudes. See Borden, Taylor and Hovde, National Advertising in Newspapers, 207—212 (1946). 48 See, generally, Comment, Refusals to Sell and Public Control of Competition, 58 Yale L.J. 1121 (1949). 49 And see United States v. Klearflax Linen Looms. D.C.1945, 63 F.Supp. 32. '(I)f all the newspapers in a city, in order to monopolize the dissemination of news and advertising by eliminating a competing radio station, conspired to accept no advertisements from anyone who advertised over that station, they would violate §§ 1 and 2 of the Sherman Act. (Citing cases.) It is consistent with that result to hold here that a single newspaper, already enjoying a substantial monopoly in its area, violates the 'attempt to monopolize' clause of § 2 when it uses its monopoly to destroy threatened competition.' Lorain Journal Co. v. United States, 1951, 342 U.S. 143, 154, 72 S.Ct. 181, 186, 96 L.Ed. 162. 50 Compare Timken Roller Bearing Co. v. United States, 1951, 341 U.S. 593, 598, 606, 71 S.Ct. 971, 974, 978, 95 L.Ed. 1190; Nelson Radio & Supply Co. v. Motorola, Inc., 5 Cir., 1952, 200 F.2d 911, 914; United States v. Lorain Journal Co., D.C.1950, 92 F.Supp. 794, 799—800. 51 105 F.Supp. at pages 676—677, 680.
78
345 U.S. 571 73 S.Ct. 921 97 L.Ed. 1254 LAURITZENv.LARSEN. No. 226. Argued Jan. 6, 1953. Decided May 25, 1953. [Syllabus from pages 571-572 intentionally omitted] Mr. James M. Estabrook, New York City, for petitioner. Messrs. George Halpern and Richard M. Cantor, New York City, for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 The key issue in this case is whether statutes of the United States should be applied to this claim of maritime tort. Larsen, a Danish seaman, while temporarily in New York joined the crew of the Randa, a ship of Danish flag and registry, owned by petitioner, a Danish citizen. Larsen signed ship's articles, written in Danish, providing that the rights of crew members would be governed by Danish law and by the employer's contract with the Danish Seamen's Union, of which Larsen was a member. He was negligently injured aboard the Randa in the course of employment, while in Havana harbor. 2 Respondent brought suit under the Jones Act1 on the law side of the District Court for the Southern District of New York and demanded a jury. Petitioner contended that Danish law was applicable and that, under it, respondent had received all of the compensation to which he was entitled. He also contested the court's jurisdiction. Entertaining the cause, the court ruled that American rather than Danish law applied, and the jury rendered a verdict of $4,267.50. The Court of Appeals, Second Circuit, affirmed.2 Its decision, at least superficially, is at variance with its own earlier ones3 and conflicts with one by the New York Court of Appeals.4 We granted certiorari.5 3 The question of jurisdiction is shortly answered. A suit to recover damages under the Jones Act is in personam against the ship's owner and not one in rem against the ship itself.6 The defendant appeared generally, answered and tendered no objection to jurisdiction of his person. As frequently happens, a contention that there is some barrier to granting plaintiff's claim is cast in terms of an exception to jurisdiction of subject matter. A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact. Cf. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 694, 95 L.Ed. 912. 4 Denmark has enacted a comprehensive code to govern the relations of her shipowners to her seagoing labor which by its terms and intentions controls this claim. Though it is not for us to decide, it is plausibly contended that all obligations of the owner growing out of Danish law have been performed or tendered to this seaman. The shipowner, supported here by the Danish Government, asserts that the Danish law supplies the full measure of his obligation and that maritime usage and international law as accepted by the United States exclude the application of our incompatible statute. 5 That allowance of an additional remedy under our Jones Act would sharply conflict with the policy and letter of Danish law is plain from a general comparison of the two systems of dealing with shipboard accidents. Both assure the ill or injured seafaring worker the conventional maintenance and cure at the shipowner's cost, regardless of fault or negligence on the part of anyone. But, while we limit this to the period within which maximum possible cure can be effected, Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850, the Danish law limits it to a fixed period of twelve weeks, and the monetary measurement is different. The two systems are in sharpest conflict as to treatment of claims for disability, partial or complete, which are permanent, or which outlast the liability for maintenance and cure, to which class this claim belongs. Such injuries Danish law relieves under a state-operated plan similar to our workmen's compensation systems. Claims for such disability are not made against the owner but against the state's Directorate of Insurance Against the Consequences of Accidents. They may be presented directly or through any Danish Consulate. They are allowed by administrative action, not by litigation, and depend not upon fault or negligence but only on the fact of injury and the extent of disability. Our own law, apart from indemnity for injury caused by the ship's unseaworthiness, makes no such compensation for such disability in the absence of fault or negligence. But, when such fault or negligence is established by litigation, it allows recovery for elements such as pain and suffering not compensated under Danish law and lets the damages be fixed by jury. In this case, since negligence was found, United States law permits a larger recovery than Danish law. If the same injury were sustained but negligence was absent or not provable, the Danish law would appear to provide compensation where ours would not. 6 Respondent does not deny that Danish law is applicable to his case. The contention as stated in his brief is rather that 'A claimant may select whatever forum he desires and receive the benefits resulting from such choice' and 'A ship owner is liable under the laws of the forum where he does business as well as in his own country.' This contention that the Jones Act provides an optional cumulative remedy is not based on any explicit terms of the Act, which makes no provision for cases in which remedies have been obtained or are obtainable under foreign law. Rather he relies upon the literal catholicity of its terminology. If read literally, Congress has conferred an American right of action which requires nothing more than that plaintiff be 'any seaman who shall suffer personal injury in the course of his employment'. It makes no explicit requirement that either the seaman, the employment or the injury have the slightest connection with the United States. Unless some relationship of one or more of these to our national interest is implied, Congress has extended our law and opened our courts to all alien seafaring men injured anywhere in the world in service of watercraft of every foreign nation—a hand on a Chinese junk, never outside Chinese waters, would not be beyond its literal wording. 7 But Congress in 1920 wrote these all-comprehending words, not on a clean slate, but as a postscript to a long series of enactments governing shipping. All were enacted with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in accommodating the reach of our own laws to those of other maritime nations. 8 The shipping laws of the United States, set forth in Title 46 of the United States Code, 46 U.S.C.A., comprise a patchwork of separate enactments, some tracing far back in our history and many designed for particular emergencies. While some have been specific in application to foreign shipping and others in being confined to American shipping, many give no evidence that Congress addressed itself to their foreign application and are in general terms which leave their application to be judicially determined from context and circumstance. By usage as old as the Nation, 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. Thus, in United States v. Palmer, 3 Wheat. 610, 4 L.Ed. 471, this Court was called upon to interpret a statute of 1790, 1 Stat. 115, punishing certain acts when committed on the high seas by 'any person or persons,' terms which, as Mr. Chief Justice Marshall observed, are 'broad enough to comprehend every human being.' But the Court determined that the literal universality of the prohibition 'must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them', 3 Wheat. at page 631, 4 L.Ed. 471, and therefore would not reach a person performing the proscribed acts aboard the ship of a foreign state on the high seas. 9 This doctrine of construction is in accord with the long-heeded admonition of Mr. Chief Justice Marshall that 'an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains * * *.' The Charming Betsey, 2 Cranch 64, 118, 2 L.Ed. 208. See The Nereide, 9 Cranch 388, 389, 423, 3 L.Ed. 769; MacLeod v. United States, 229 U.S. 416, 434, 33 S.Ct. 955, 961, 57 L.Ed. 1260; Sandberg v. McDonald, 248 U.S. 185, 195, 39 S.Ct. 84, 86, 63 L.Ed. 200. And it has long been accepted in maritime jurisprudence that '* * * if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting. That is a rule based on international law, by which one sovereign power is bound to respect the subjects and the rights of all other sovereign powers outside its own territory.' Lord Russell of Killowen in The Queen v. Jameson (1896), 2 Q.B. 425, 430. This is not, as sometimes is implied, any impairment of our own sovereignty, or limitation of the power of Congress. 'The law of the sea', we have had occasion to observe, 'is in a peculiar sense an international law, but application of its specific rules depends upon acceptance by the United States.' Farrell v. United States, 336 U.S. 511, 517, 69 S.Ct. 707, 710, 93 L.Ed. 850. On the contrary, we are simply dealing with a problem of statutory construction rather commonplace in a federal system by which courts often have to decide whether 'any' or 'every' reaches to the limits of the enacting authority's usual scope or is to be applied to foreign events or transactions.7 10 The history of the statute before us begins with the 1915 enactment of the comprehensive LaFollette Act, entitled, 'An Act To promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion and to secure the abrogation of treaty provisions in relation thereto; and to promote safety at sea.' 38 Stat. 1164. Many sections of this Act were in terms or by obvious implication restricted to American ships.8 Three sections were made specifically applicable to foreign vessels,9 and these provoked considerable doubt and debate.10 Others were phrased in terms which on their face might apply to the world or to anything less. In this category fell § 20, a cryptic paragraph dealing with the fellow-servant doctrine, to which this Court ascribed little, if any, of its intended effect. Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171. In 1920, Congress, under the title 'An Act To provide for the promotion and maintenance of the American merchant marine * * *' and other subjects not relevant, provided a plan to aid our mercantile fleet and included the revised provision for injured seamen now before us for construction. 41 Stat. 988, 1007. It did so by reference to the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., which we have held not applicable to an American citizen's injury sustained in Canada while in service of an American employer. New York Central R. Co. v. Chisholm, 268 U.S. 29, 45 S.Ct. 402, 69 L.Ed. 828. And it did not give the seaman the one really effective security for a claim against a foreign owner, a maritime lien.11 11 Congress could not have been unaware of the necessity of construction imposed upon courts by such generality of language and was well warned that in the absence of more definite directions than are contained in the Jones Act it would be applied by the courts to foreign events, foreign ships and foreign seamen only in accordance with the usual doctrine and practices of maritime law. 12 Respondent places great stress upon the assertion that petitioner's commerce and contacts with the ports of the United States are frequent and regular, as the basis for applying our statutes to incidents aboard his ships. But the virtue and utility of sea-borne commerce lies in its frequent and important contacts with more than one country. If, to serve some immediate interest, the courts of each were to exploit every such contact to the limit of its power, it is not difficult to see that a multiplicity of conflicting and overlapping burdens would blight international carriage by sea. Hence, courts of this and other commercial nations have generally deferred to a non-national or international maritime law of impressive maturity and universality.12 It has the force of law, not from extraterritorial reach of national laws, nor from abdication of its sovereign powers by any nation, but from acceptance by common consent of civilized communities of rules designed to foster amicable and workable commercial relations. 13 International or maritime law in such matters as this does not seek uniformity and does not purport to restrict any nation from making and altering its laws to govern its own shipping and territory. However, it aims at stability and order through usages which considerations of comity, reciprocity and long-range interest have developed to define the domain which each nation will claim as its own. Maritime law, like our municipal law, has attempted to avoid or resolve conflicts between competing laws by ascertaining and valuing points of contact between the transaction and the states or governments whose competing laws are involved. The criteria, in general, appear to be arrived at from weighing of the significance of one or more connecting factors between the shipping transaction regulated and the national interest served by the assertion of authority. It would not be candid to claim that our courts have arrived at satisfactory standards or apply those that they profess with perfect consistency. But in dealing with international commerce we cannot be unmindful of the necessity for mutual forbearance if retaliations are to be avoided; nor should we forget that any contact which we hold sufficient to warrant application of our law to a foreign transaction will logically be as strong a warrant for a foreign country to apply its law to an American transaction. 14 In the case before us, two foreign nations can claim some connecting factor with this tort—Denmark, because, among other reasons, the ship and the seaman were Danish nationals; Cuba, because the tortious conduct occurred and caused injury in Cuban waters. The United States may also claim contacts because the seaman had been hired in and was returned to the United States, which also is the state of the forum. We therefore review the several factors which, alone or in combination, are generally conceded to influence choice of law to govern a tort claim, particularly a maritime tort claim, and the weight and significance accorded them. 15 1. Place of the Wrongful Act.—The solution most commonly accepted as to torts in our municipal and in international law is to apply the law of the place where the acts giving rise to the liability occurred, the lex loci delicti commissi.13 This rule of locality, often applied to maritime torts,14 would indicate application of the law of Cuba, in whose domain the actionable wrong took place. The test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts, because of the varieties of legal authority over waters she may navigate. These range from ports, harbors, roadsteads, straits, rivers and canals which form part of the domain of various states, through bays and gulfs, and that band of the littoral sea known as territorial waters, over which control in a large, but not unlimited, degree is conceded to the adjacent state. It includes, of course, the high seas as to which the law was probably settled and old when Grotius wrote that it cannot be anyone's property and cannot be monopolized by virtue of discovery, occupation, papal grant, prescription or custom.15 16 We have sometimes uncompromisingly asserted territorial rights, as when we held that foreign ships voluntarily entering our waters become subject to our prohibition laws and other laws as well, except as we may in pursuance of our own policy forego or limit exertion of our power. Cunard Steamship Co. v. Mellon, 262 U.S. 100, 124, 43 S.Ct. 504, 507, 67 L.Ed. 894. This doctrine would seem to indicate Cuban law for this case. But the territorial standard is so unfitted to an enterprise conducted under many territorial rules and under none that it usually is modified by the more constant law of the flag. This would appear to be consistent with the practice of Cuba, which applies a workmen's compensation system in principle not unlike that of Denmark to all accidents occurring aboard ships of Cuban registry.16 The locality test, for what it is worth, affords no support for the application of American law in this case and probably refers us to Danish in preference to Cuban law, though this point we need not decide, for neither party urges Cuban law as controlling. 17 2. Law of the Flag.—Perhaps the most venerable and uniersal rule of maritime law relevant to our problem is that which gives cardinal importance to the law of the flag. Each state under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and acquiring authority over it. Nationality is evidenced to the world by the ship's papers and its flag. The United States has firmly and successfully maintained that the regularity and validity of a registration can be questioned only by the registering state.17 18 This Court has said that the law of the flag supersedes the territorial principle, even for purposes of criminal jurisdiction of personnel of a merchant ship, because it 'is deemed to be a part of the territory of that sovereignty (whose flag it flies), and not to lose that character when in navigable waters within the territorial limits of another sovereignty.' On this principle, we concede a territorial government involved only concurrent jurisdiction of offenses aboard our ships. United States v. Flores, 289 U.S. 137, 155—159, 53 S.Ct. 580, 584—586, 77 L.Ed. 1086, and cases cited. Some authorities reject, as a rather mischievous fiction, the doctrine that a ship is constructively a floating part of the flagstate,18 but apply the law of the flag on the pragmatic basis that there must be some law on shipboard, that it cannot change at every change of waters, and no experience shows a better rule than that of the state that owns her. 19 It is significant to us here that the weight given to the ensign overbears most other connecting events in determining applicable law. As this Court held in United States v. Flores, supra, 289 U.S. at page 158, 53 S.Ct. at page 586, and iterated in Cunard S.S. Co. v. Mellon, supra, 262 U.S. at page 123, 43 S.Ct. at page 507: 20 'And so by comity it came to be generally understood among civilized nations that all matters of discipline, and all things done on board, which affected only the vessel, or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation, or the interests of its commerce should require. * * *' 21 This was but a repetition of settled American doctrine.19 22 These considerations are of such weight in favor of Danish and against American law in this case that it must prevail unless some heavy counterweight appears. 23 3. Allegiance or Domicile of the Injured.—Until recent times there was little occasion for conflict between the law of the flag and the law of the state of which the seafarer was a subject, for the long-standing rule, as pronounced by this Court after exhaustive review of authority, was that the nationality of the vessel for jurisdictional purposes was attributed to all her crew. In re Ross, 140 U.S. 453, 472, 11 S.Ct. 897, 902, 35 L.Ed. 581.20 Surely during service under a foreign flag some duty of allegiance is due. But, also, each nation has a legitimate interest that its nationals and permanent inhabitants be not maimed or disabled from self-support. In some later American cases, courts have been prompted to apply the Jones Act by the fact that the wrongful act or omission alleged caused injury to an American citizen or domiciliary.21 We need not, however, weigh the seaman's nationality against that of the ship, for here the two coincide without resort to fiction. Admittedly, respondent is neither citizen nor resident of the United States. While on direct examination he answered leading questions that he was living in New York when he joined the Randa, the articles which he signed recited, and on cross-examination he admitted, that his home was Silkeburg, Denmark. His presence in New York was transitory and created no such national interest in, or duty toward, him as to justify intervention of the law of one state on the shipboard of another. 24 4. Allegiance of the Defendant Shipowner.—A state 'is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed.' Skiriotes v. State of Florida, 313 U.S. 69, 73, 61 S.Ct. 924, 927, 85 L.Ed. 1193. Steele v. Bulova Watch Co., 344 U.S. 280, 282, 73 S.Ct. 252, 253. Until recent times this factor was not a frequent occasion of conflict, for the nationality of the ship was that of its owners.22 But it is common knowledge that in recent years a practice has grown, particularly among American shipowners, to avoid stringent shipping laws by seeking foreign registration eagerly offered by some countries.23 Confronted with such operations, our courts on occasion have pressed beyond the formalities of more or less nominal foreign registration to enforce against American shipowners the obligations which our law places upon them.24 But here again the utmost liberality in disregard of formality does not support the application of American law in this case, for it appears beyond doubt that this owner is a Dane by nationality and domicile. 25 5. Place of Contract.—Place of contract, which was New York, is the factor on which respondent chiefly relies to invoke American law. It is one which often has significance in choice of law in a contract action. But a Jones Act suit is for tort, in which respect it differs from one to enforce liability for maintenance and cure. As we have said of the latter, 'In the United States this obligation has been recognized consistently as an implied provision in contracts of marine employment. Created thus with the contract of employment, the liability, unlike that for indemnity or that later created by the Jones Act, in no sense is predicated on the fault or negligence of the shipowner.' Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63 S.Ct. 930, 933, 87 L.Ed. 1107. DeZon v. American President Lines, 318 U.S. 660, 667, 63 S.Ct. 814, 818, 87 L.Ed. 1065. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527, 58 S.Ct. 651, 652, 82 L.Ed. 993. But this action does not seek to recover anything due under the contract or damages for its breach. 26 The place of contracting in this instance, as is usual to such contracts, was fortuitous. A seaman takes his employment, like his fun, where he finds it; a ship takes on crew in any port where it needs them. The practical effect of making the lex loci contractus govern all tort claims during the service would be to subject a ship to a multitude of systems of law, to put some of the crew in a more advantageous position than others, and not unlikely in the long run to diminish hirings in ports of countries that take best care of their seamen. 27 But if contract law is nonetheless to be considered, we face the fact that this contract was explicit that the Danish law and the contract with the Danish union were to control. Except as forbidden by some public policy, the tendency of the law is to apply in contract matters the law which the parties intended to apply.25 We are aware of no public policy that would prevent the parties to this contract, which contemplates performance in a multitude of territorial jurisdictions and on the high seas, from so settling upon the law of the flag-state as their governing code. This arrangement is so natural and compatible with the policy of the law that even in the absence of an express provision it would probably have been implied. The Belgenland, 114 U.S. 355, 367, 5 S.Ct. 860, 865, 29 L.Ed. 152; The Hanna Nielsen, 2 Cir., 273 F. 171. We think a quite different result would follow if the contract attempted to avoid applicable law, for example, so as to apply foreign law to an American ship. 28 However, at the same time that he is relying on the place of the contract, respondent attacks the whole contract as void because the articles do not describe the voyage with sufficient definiteness within the rule applied in The Quoque, D.C., 261 F. 414, affirmed United States v. Westwood, 4 Cir., 266 F. 696. This case dealt with an American ship and its holding was founded upon a statute originally enacted in 1873 and held by those courts that have dealt with the problem applicable only to American ships. The Montapedia, D.C., 14 F. 427; The Elswick Tower, D.C., 241 F. 706. The contention is without merit. 29 We do not think the place of contract is a substantial influence in the choice between competing laws to govern a maritime tort. 30 6. Inaccessibility of Foreign Forum.—It is argued, and particularly stressed by an amicus brief, that justice requires adjudication under American law to save seamen expense and loss of time in returning to a foreign forum. This might be a persuasive argument for exercising a discretionary jurisdiction to adjudge a controversy; but it is not persuasive as to the law by which it shall be judged. It is pointed out, however, that the statutes of at least one maritime country (Panama) allow suit under its law by injured seamen only in its own courts. The effect of such a provision is doubtful in view of our holding that such venue restrictions by one of the states of the Union will not preclude action in a sister state, Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 34 S.Ct. 587, 58 L.Ed. 997. 31 Confining ourselves to the case in hand, we do not find this seaman disadvantaged in obtaining his remedy under Danish law from being in New York instead of Denmark. The Danish compensation system does not necessitate delayed, prolonged, expensive and uncertain litigation. It is stipulated in this case that claims may be made through the Danish Consulate. There is not the slightest showing that to obtain any relief to which he is entitled under Danish law would require his presence in Denmark or necessitate his leaving New York. And, even if it were so, the record indicates that he was offered and declined free transportation to Denmark by petitioner. 32 7. The Law of the Forum.—It is urged that, since an American forum has perfected its jurisdiction over the parties and defendant does more or less frequent and regular business within the forum state, it should apply its own law to the controversy between them. The 'doing business' which is enough to warrant service of process may fall quite short of the considerations necessary to bring extraterritorial torts to judgment under our law. Under respondent's contention, all that is necessary to bring a foreign transaction between foreigners in foreign ports under American law is to be able to serve American process on the defendant. We have held it a denial of due process of law when a state of the Union attempts to draw into control of its law otherwise foreign controversies, on slight connections, because it is a forum state. Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178; Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926. The purpose of a conflict-of-laws doctrine is to assure that a case will be treated n the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum. Jurisdiction of maritime cases in all countries is so wide and the nature of its subject matter so far-flung that there would be no justification for altering the law of a controversy just because local jurisdiction of the parties is obtainable. 33 It is pointed out that our statute on limitation of shipowner's liability which formerly applied in terms to 'any vessel' was applied by our courts to foreign causes.26 Hence, it is argued by analogy that 'any seaman' should be construed so to apply. But the situation is inverted. The limitation-of-liability statute was construed to thus apply only against those who had chosen to sue in our courts on foreign transactions.27 Because a law of the forum is applied to plaintiffs who voluntarily submit themselves to it is no argument for imposing the law of the forum upon those who do not. Furthermore, this application of the limitation on liability brought our practice into harmony with that of all other maritime nations,28 while the application of the Jones Act here advocated would bring us into conflict with the maritime world. 34 This review of the connecting factors which either maritime law or our municipal law of conflicts regards as significant in determining the law applicable to a claim of actionable wrong shows an overwhelming preponderance in favor of Danish law. The parties are both Danish subjects, the events took place on a Danish ship, not within our territorial waters. Against these considerations is only the fact that the defendant was served here with process and that the plaintiff signed on in New York, where the defendant was engaged in our foreign commerce. The latter event is offset by provision of his contract that the law of Denmark should govern. We do not question the power of Congress to condition access to our ports by foreign-owned vessels upon submission to any liabilities it may consider good American policy to exact. But we can find no justification for interpreting the Jones Act to intervene between foreigners and their own law because of acts on a foreign ship not in our waters. 35 In apparent recognition of the weakness of the legal argument, a candid and brash appeal is made by respondent and by amicus briefs to extend the law to this situation as a means of benefiting seamen and enhancing the costs of foreign ship operation for the competitive advantage of our own. We are not sure that the interest of this foreign seaman, who is able to prove negligence, is the interest of all seamen or that his interest is that of the United States. Nor do we stop to inquire which law does whom the greater or the lesser good. The argument is misaddressed. It would be within the proprieties if addressed to Congress. Counsel familiar with the traditional attitude of this Court in maritime matters could not have intended it for us.29 36 The judgment below is reversed and the cause remanded to District Court for proceedings consistent herewith. 37 Reversed and remanded. 38 Mr. Justice BLACK agrees with the Court of Appeals and would affirm its judgment. 39 Mr. Justice CLARK, not having heard oral argument, took no part in the consideration or decision of this case. 1 '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 * * *.' 46 U.S.C. § 688, 46 U.S.C.A. § 688. 2 196 F.2d 220. 3 In The Paula, 91 F.2d 1001, 1003, the then Circuit Court of Appeals, Second Circuit, held the Jones Act inapplicable to a suit by an alien seaman against this same petitioner, and expressly refused to follow dicta by the Fifth Circuit Court of Appeals in Arthur v. Compagnie Generale Transatlantique, 72 F.2d 662, to the effect that the Act gave a right of action to 'all seamen regardless of nationality.' The Paula decision is generally consistent with prior decisions of the court rendering it. See The Hanna Nielsen, 2 Cir., 273 F. 171; The Pinar Del Rio, 2 Cir., 16 F.2d 984, affirmed 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827. A few years later, in Gambera v. Bergoty, 2 Cir., 132 F.2d 414, that same court granted relief under the Jones Act to a plaintiff who was a long-time resident, though not a citizen, of this country, and who suffered injury in American territorial waters while serving on a Greek ship. In Kyriakos v. Goulandris, 2 Cir., 151 F.2d 132, the court (over the dissent of Judge Learned Hand) held that the Act applied to injuries sustained while ashore in the United States by a Greek seaman employed by a Greek shipowner. In O'Neill v. Cunard White Star Line, 2 Cir., 160 F.2d 446, that court held that a British seaman injured on a British vessel on the high seas could not sue under the Jones Act.In Taylor v. Atlantic Maritime Co., 2 Cir., 179 F.2d 597, 600, it reversed a district court judgment dismissing a Jones Act suit by a Panamanian citizen, allegedly residing in New York, against a ship of Panamanian registry for injuries apparently received on the high seas. Judge Learned Hand, writing for the court, indicated that a majority of the panel thought that the Jones Act was not applicable to alien seamen, but that 'in spite of what we should hold were we free' they were bound by the decision in Kyriakos. In the case now before us the court affirmed per curiam on the authority of Kyriakos and Taylor. No two of these cases present exactly the same basis for application of American law and their contrary results do not necessarily mean inconsistency. But they illustrate different considerations which influence choice of law in maritime tort cases. 4 Sonnesen v. Panama Transport Co., 298 N.Y. 262, 82 N.E.2d 569. Such a conflict can arise because Jones Act suits may be brought in state as well as federal courts. Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813. 5 344 U.S. 810, 73 S.Ct. 41. 6 See Plamals v. Pinar del Rio, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827. 7 Cheatham and Reese, Choice of the Applicable Law, 52 Col.L.Rev. 959, 961, dealing with state statutes, puts the problem in this fashion: 'There is one rule or policy which, wherever applicable, takes precedence over others and, to a large extent, saves the courts from further pain of decision. That controlling policy, obvious as it may be, is that a court must follow the dictates of its own legislature to the extent that these are constitutional. But, although choice of law constitutes no exception to this fundamental rule, rarely can the principle be applied in practice. The vast run of statutes are enacted with only the intrastate situation in mind. The application of a statute to out-of-state occurrences, therefore, must generally be determined in accordance with ordinary conflict of laws rules. And this is so even if, as is frequently the case, the statute employs such sweeping terms as 'every contract' or 'every decedent.' Unless it appears that the draftsmen so intended, language of this sort is not to be taken literally to mean that the statute is applicable to every transaction wherever occurring or to every case brought in the forum. Where, on the other hand, it is clear that the legislature has actually addressed itself to the choice of law problem, the courts, subject to the limitation of constitutionality, must give effect to its intentions.' 8 Section 1, 46 U.S.C.A. § 569, requiring lost seamen to be replaced, directed the master to report such replacement to the United States consul at the first port at which he shall arrive thereafter. Section 2, 46 U.S.C.A. § 673, provided certain regulations affecting the duties of crew members aboard 'all merchant vessels of the United States'. Section 5, 46 U.S.C.A. § 656, provided that on complaint of the officers or crew of 'any vessel' in a foreign port that the vessel is unseaworthy or inadequately provisioned 'the consul' may appoint someone to make inquiry. Section 6, 46 U.S.C.A. § 660—1, set forth certain sanitation requirements for 'merchant vessels of the United States'. Section 13, 46 U.S.C.A. § 672, required every vessel to have in its complement a minimum percentage of able-bodied seamen certified by the Secretary of Commerce. Section 19 was concerned with the procedure to be followed before American consuls abroad in certain matters involving American seamen. 9 §§ 4, 11, and 14, 46 U.S.C.A. §§ 597, 599, 601, 222, 481. Section 4 gave seamen the right to demand certain wage payments on coming into port. Its closing portion provided '* * * this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement.' Section 11 re-enacted, with some changes, an 1898 statute prohibiting payment of advance wages to seamen; one subsection stated 'This section shall apply as well to foreign vessels while in waters of the United States, as to vessels of the United States, and any master, owner, consignee, or agent of any foreign vessel who has violated its provisions shall be liable to the same penalty that the master, owner, or agent of a vessel of the United States would be for similar violation.' For construction of these two sections see Patterson v. Bark Eudora, 190 U.S. 169, 23 S.Ct. 821, 47 L.Ed. 1002; Sandberg v. McDonald, 248 U.S. 185, 39 S.Ct. 84, 63 L.Ed. 200, and Strathearn S.S. Co. v. Dillon, 252 U.S. 348, 40 S.Ct. 350, 64 L.Ed. 607. Section 14, 46 U.S.C.A. §§ 222, 481, directed that certain requirements concerning lifeboats should also be applicable to foreign vessels leaving United States ports. 10 See Report of the House Committee on Merchant Marine and Fisheries, H.R.Rep.No.852, 63d Cong., 2d Sess., pp. 18, 20; 50 Cong.Rec. 5761—5792. 11 Plamals v. Pinar del Rio, supra, n. 6. 12 See the famous opinion of Mr. Justice Story in De Lovio v. Boit, C.C., Fed.Cas. No. 3776, 2 Gall. 398; The Sally, 8 Cranch 382, 3 L. Ed. 597 and 2 Cranch 406, 2 L.Ed. 320; The Scotia, 14 Wall. 170, 20 L.Ed. 822; Dickenson, The Law of Nations as Part of the National Law of the United States, 101 U. of Pa.L.Rev. 26, 28 29, 792, 803—816. 13 See Slater v. Mexican National R. Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900; New York Central R. Co. v. Chisholm, 268 U.S. 29, 45 S.Ct. 402, 69 L.Ed. 828; Rheinstein, The Place of Wrong, 19 Tul.L.rev. 4, 165; cf. Sandberg v. McDonald, 248 U.S. 185, 195, 39 S.Ct. 84, 86, 63 L.Ed. 200. 14 Carr v. Fracis Times & Co., (1902) A.C. 176; cf. Uravic v. F. Jarka Co., 282 U.S. 234, 51 S.Ct. 111, 75 L.Ed. 312. See Restatement, Conflict of Laws, § 404. 15 Grotius, De Jure Praedae, Carnegie Endowment publication 1950, 207, 220, 222, 223, 231—233, 234, 237. See Dumbauld, Grotius on the Law of Prize, 1 J.Pub.L. 370, 372, 387. 16 See Cuba Workmen's Compensation Law, Decree No. 2687, November 15, 1933, Art. XI, Art. XL. 17 The leading case is The Virginius, seized in 1873 by the Spanish when en route to Cuba. President Grant took the position that 'if the ship's papers were irregular or fraudulent, the crime was committed against the American laws and only its tribunals were competent to decide the question.' The Attorney General took the same position. The ship was restored. 2 Moore's Digest 895 903. Higgins and Colombos, International Law of the Sea (2d ed.), 201. 18 The theoretical basis used by this Court apparently prevailed in 1928 with the Permanent Court of International Justice in the case of The Lotus, P.C.I.J., Series A, No. 10. For criticism of it see Higgins and Colombos, International Law of the Sea (2d ed.), 193—195. We leave the controversy where we find it, for either basis leads to the same result in this case, though this might not be so with some other problems of shipping. 19 Wildenhus' Case, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565; Brown v. Duchesne, 19 How. 183, 15 L.Ed. 595. For application of this doctrine in tort cases see Bonsalem v. Byron S.S. Co., 2 Cir., 50 F.2d 114; Cain v. Alpha S.S. Corp., 2 Cir., 35 F.2d 717; Grand Trunk R. Co. v. Wright, 6 Cir., 21 F.2d 814; Restatement, Conflict of Laws, § 405. 20 See also Rainey v. New York & P.S.S. Co., 9 Cor., 216 F. 449. 21 See Uravic v. Jarka, supra; Shorter v. Bermuda & West Indies S.S. Co., D.C., 57 F.2d 313; Gambera v. Bergoty, supra. But see The Oriskany, D.C., 3 F.Supp. 805; Clark v. Montezuma Transport Co., 217 App.Div., 172, 216, N.Y.S. 295. 22 Many nations (including both the United States and Denmark) still allow only those ships wholly or predominantly owned by its nationals to register under its flag. See 46 U.S.C.A. §§ 11, 808; Denmark, Maritime Law of May 7, 1937, § 1. 23 McFee, The Law of the Sea, 152—154. See Merchant Marine Study and Investigation (Transfer of American Ships to Foreign Registry), Hearings before the Senate Interstate and Foreign Commerce Committee, S.Doc. No. 6857, 81st Cong., 1st Sess. 24 See Gerradin v. United Fruit Co., 2 Cir., 60 F.2d 927; cf. Central Vermont Transp. Co. v. Durning, 294, U.S. 33, 55 S.Ct. 306, 79 L.Ed. 741. 25 See Yntema, 'Autonomy' in Choice of Law, 1 Am.J.Comp.L. 341. 26 The Scotland, 105 U.S. 24, 26 L.Ed. 1001; The Titanic, 233 U.S. 718, 34 S.Ct. 754, 58 L.Ed. 1171. At the time these cases were decided the statute purported to apply to 'any vessel.' In 1936 it was amended so as expressly to apply to foreign, as well as domestic, vessels. 49 Stat. 1479, 46 U.S.C.A. § 183. 27 'It is true that the act of Congress does not control or profess to control the conduct of a British ship on the high seas. See American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511(512), 53 L.Ed. 826, 832. It is true that the foundation for a recovery upon a British tort is an obligation created by British law. But it also is true that the laws of the forum may decline altogether to enforce that obligation on the ground that it is contrary to the domestic policy, or may decline to enforce it except within such limits as it may impose. Cuba Railroad Co. v. Crosby, 222 U.S. 473, 478, 480, 32 S.Ct. 132 (133), 56 L.Ed. 274—276, 38 L.R.A.,N.S., 40; Dicey, Confl.L.2d ed. 647. It is competent, therefore, for Congress to enact that, in certain matters belonging to admiralty jurisdiction, parties resorting to our courts shall recover only to such extent or in such way as it may mark out. Butler v. Boston & Savannah S.S. Co., 130 U.S. 527, 9 S.Ct. 612, 32 L.Ed. 1017. The question is not whether the owner of the Titanic by this proceeding can require all claimants to come in, and can cut down rights vested under English law, as against, for instance, Englishmen living in England, who do not appear. It is only whether those who do see fit to sue in this country are limited in their recovery irrespective of the English law. That they are so limited results, in our opinion, from the decisions of this court. For on what ground was the limitation of liability allowed in The Scotland or La Bourgogne (Deslions v. La Compagnie Generale Transatlantique, 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973)? * * * The essential point was that the limitation might be applied to foreign ships if sued in this country, although they were not subject to our substantive law.' The Titanic, supra, 233 U.S. at pages 732—733, 34 S.Ct. at pages 755 756 (per Holmes, J.). 28 Limitation of liability has been an essential part of the maritime law of every maritime nation since the Grand Ordonnance of Louis XIV in 1681. See discussion in the opinion of Mr. Justice Brown in The Main v. Williams, 152 U.S. 122, 14 S.Ct. 486, 38 L.Ed. 381. 29 Cf. The Peterhoff, 5 Wall. 28, 57, 18 L.Ed. 564: 'In cases such as that now in judgment, we administer the public law of nations, and are not at liberty to inquire what is for the particular advantage or disadvantage of our own or another country.'
78
345 U.S. 629 73 S.Ct. 894 97 L.Ed. 1303 UNITED STATESv.W. T. GRANT CO. et al. No. 532. Argued and Submitted April 9, 1953. Decided May 25, 1953. Mr. Victor H. Kramer, Washington, D.C., for appellant. Mr. Eustace Seligman, New York City, for appellees John M. Hancock et al. Mr. Abe Fortas, Washington, D.C., for appellee Kroger Co. Mr. Harry H. Wiggins, New York City, for appellee S. H. Kresge Co. Mr. Justice CLARK delivered the opinion of the Court. 1 For the first time since the enactment of the Clayton Act in 1914 the Court is called upon to consider § 8's prohibitions against interlocking corporate directorates.1 The Government appeals from judgments dismissing civil actions brought against Hancock and three pairs of corporations which he served as a director, W. T. Grant Co. and S. H. Kress & Co., Sears Roebuck & Co. and Bond Stores, Inc., and Kroger Co. and Jewel Tea Co., Inc. Alleging that the size and competitive relationship of each set of companies brought the interlocks within the reach of § 8, the complaints asked the court to order the particular interlocks terminated and to enjoin future violations of § 8 by the individual and corporate defendants. Soon after the complaints were filed, Hancock resigned from the boards of Kress, Kroger and Bond. Disclosing the resignations by affidavit, all of the defendants then moved to dismiss the actions as moot. Treated as motions for summary judgment,2 they were granted by the District Judge. His concluded that there is not 'the slightest threat that the defendants will attempt any future activity in violation of § 8 (if they have violated it already) * * *.' 112 F.Supp. 336, 338. The Government brought this direct appeal under § 2 of the Expediting Act, 32 Stat. 823, as amended, 62 Stat. 989, 15 U.S.C.(Supp. V) § 29, 15 U.S.C.A. § 29, contending that the cases were not rendered moot by Hancock's resignations and that it was an abuse of discretion for the trial court to refuse any injunctive relief. 2 Appellees suggest, without arguing the point in extenso, that the judgment should be affirmed because § 11 of the Clayton Act vests exclusive § 8 enforcement powers in the Federal Trade Commission.3 Section 11 does authorize the Commission to enforce § 8. But any inference that administrative jurisdiction was intended to be exclusive falls before the plain words of § 15: 'The several district courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this Act * * *.' 15 U.S.C. § 25, 15 U.S.C.A. § 25. And the cases have spoken of Congress' design to provide a scheme of dual enforcement for the Clayton Act. United States Alkali Export Ass'n v. United States, 1945, 325 U.S. 196, 208, 65 S.Ct. 1120, 1127, 89 L.Ed. 1554; Standard Oil Co. of California and Standard Stations v. United States, 1949, 337 U.S. 293, 310, note 13, 69 S.Ct. 1051, 1060, 93 L.Ed. 1371. Appellees' failure to press the point denotes its merits. The District Court properly entertained the suits. 3 Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. United States v. Trans-Missouri Freight Ass'n, 1897, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007; Walling v. Helmerich & Payne, Inc., 1944, 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29; Hecht Co. v. Bowles, 1944, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754. A controversy may remain to be settled in such circumstances, United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, 448, e.g., a dispute over the legality of the challenged practices. Walling v. Helmerich & Payne, Inc., supra; Local 74 United Brotherhood of Carpenters, etc., v. National Labor Relations Board, 1951, 341 U.S. 707, 715, 71 S.Ct. 966, 970, 95 L.Ed. 1309. The defendant is free to return to his old ways.4 This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. United States v. Trans-Missouri Freight Ass'n, supra, 166 U.S. at pages 309, 310, 17 S.Ct. 546, 547. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right, National Labor Relations Board v. General Motors Corp., 2 Cir., 1950, 179 F.2d 221. The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement.5 4 The case may nevertheless be moot if the defendant can demonstrate that 'there is no reasonable expectation that the wrong will be repeated.'6 The burden is a heavy one. Here the defendants told the court that the interlocks no longer existed and disclaimed any intention to revive them. Such a profession does not suffice to make a case moot although it is one of the factors to be considered in determining the appropriateness of granting an injunction against the now-discontinued acts. 5 Along with its power to hear the case, the court's power to grant injunctive relief survives discontinuance of the illegal conduct. Hecht Co. v. Bowles, supra; Goshen Mfg. Co. v. Hubert A. Myers Mfg. Co., 1916, 242 U.S. 202, 37 S.Ct. 105, 61 L.Ed. 248. The purpose of an injunction is to prevent future violations, Swift & Co. v. United States, 1928, 276 U.S. 311, 326, 48 S.Ct. 311, 314, 72 L.Ed. 587 and, of course, it can be utilized even without a showing of past wrongs. But the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive. The chancellor's decision is based on all the circumstances; his discretion is necessarily broad and a strong showing of abuse must be made to reverse it. To be considered are the bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of the past violations. 6 The facts relied on by the Government to show an abuse of discretion in this case are these: Hancock's three interlocking directorates viewed as three distinct violations, his failure to terminate them until after suit was filed despite five years of administrative attempts to persuade him of their illegality, his express refusal to concede that the interlocks in question were illegal under the statute and his failure to promise not to commit similar violations in the future. 7 Were we sitting as a trial court, this showing might be persuasive. But the Government must demonstrate that there was no reasonable basis for the District Judge's decision.7 In this we think it fails. An individual proclivity to violate the statute need not be inferred from the fact that three violations were charged, particularly since it is only recently that the Government has attempted systematic enforcement of § 8.8 The District Court was not dealing with a defendant who follows one adjudicated violation with others. The only material before the District Judge on the supposed five years of administrative persuasion could easily support an inference that during that time the defendant and the Department of Justice were each trying to determine the legality of his directorships. The Government's remedy under the statute was plain. Postponement of suit indicates doubt on the prosecutor's part as much as intransigence on the defendant's. How much contrition should be expected of a defendant is hard for us to say. This surely is a question better addressed to the discretion of the trial court. The same can be said of the limited disclaimer of future intent. 8 Assuming with the Government that the corporations were properly joined as defendants,9 the conclusion that there was no abuse of discretion in refusing injunctive relief against Hancock applies a fortiori in their case. None of the corporations appeared to have engaged in more than one alleged violation. And affidavits filed with the motions to dismiss indicated that these defendants were ignorant of the Government's interest in the interlocks until the suits were filed. Indeed the emphasis on this branch of the case is placed on the refusal of relief against Hancock. The failure to point to circumstances compelling further relief against the corporations speaks for itself. 9 Essentially, the Government's claim is that it was deprived of a trial on the relief issue. But at no time was objection raised to the procedure by which the case was handled. Of course summary judgment procedure could not have been employed were there a 'genuine issue as to any material fact'. Fed.Rules Civ.Proc. 56. However, after the defendants had moved to dismiss, the Government elected not to file any countervailing affidavits or amend its complaint and stated on oral argument that the truth of the defendants' affidavits was not questioned. To frame a factual dispute, that left the complaint, the only relevant paragraph of which reads: '16. The defendants have threatened to continue and will continue the aforesaid violation of Section 8 of the Clayton Act unless the relief prayed for herein is granted.' (Emphasis added.) 'The aforesaid violation(s),' the specific interlocks, had been voluntarily terminated and intention to resume them had been negatived under oath. As to the prayer that the defendants be enjoined from any future violations of § 8, the complaint alleged no threatened violations other than those specifically charged. In these circumstances, the District Judge could decide that there was no significant threat of future violation and that there was no factual dispute about the existence of such a threat. 10 We conclude that, although the actions were not moot, no abuse of discretion has been demonstrated in the trial court's refusal to award injunctive relief. Moreover, the court stated its dismissals 'would not be a bar to a new suit in case possible violations arise in the future.' The judgments are affirmed. 11 Affirmed. 12 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 13 Monopoly and restraints of trade are sometimes the products of practices and devices as ingenious as the minds of men. Sometimes they follow a blunt and direct course as is involved in the acquisition of the assets of a competitor—a way of growth of monopoly power to which the decisions of the Court have given a powerful impetus and encouragement. See especially United States v. Columbia Steel Co., 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533. More subtle are interlocking arrangements between directorates. This can accomplish disastrous consequences, as Mr. Justice Brandeis pointed out forty years ago. Interlocking directorates between companies which compete stifle the competition. Or to use the words of Mr. Justice Brandeis, the practice substitutes 'the pull of privilege for the push of manhood.'1 Moreover, those entwined relations are the stuff out of which concentration of financial power over American industry was built and is maintained. Mr. Justice Brandeis gave one example:2 14 'They, the bankers, control the railroads, and controlling the railroads, they were able to control the issue and sale of securities. Being bankers, they bought those securities at a price which they had a part in fixing or could have a part in fixing. They sold those securities, as bankers, to insurance companies in which they were able to exercise some control as directors. They got the money with which to buy those securities from railroads through their control of the great banking institutions, and then, in their capacity of having control of the railroads, they utilized that money to purchase from great corporations, like the Steel Corporation, what the railroads needed, and in their capacity as controlling other corporations they bought from the Steel Corporation again, and so on until we had the endless chain.' 15 The web that is woven may tie many industries, insurance companies, and financial houses together into a vast and friendly alliance that takes the edge off competition. 16 That condition is aggravated here. The interlocking control in the present case is not indirect. Mr. Hancock served as a director for each of three sets of companies which, on the state of the pleadings before us, we must assume to have been competitive. The fact that he resigned under the pressure of these proceedings should not dispose of the case. We are dealing here with professionals whose technique for controlling enterprises and building empires was fully developed and well known long before Mr. Justice Brandeis was crying out against the evils of 'the money trust.' Mr. Hancock is and has been for some years a partner in the investment banking firm of Lehman Bros. In 1940 he testified that when Lehman Bros. did financing for a company it was their 'traditional practice' to ask for representation on the board of directors.3 17 It therefore seems to me that a District Judge, faced with violations such as were involved here, would want to know first, how investment bankers built their empires; second, how this particular firm built its own empire; third, the effect of these banker empires on competition between the companies which are tied to them. 18 The fact that the Lehman partner resigned to avoid a decision on the merits has little, if any, relevancy to the issue in the case, for we are here concerned with the proclivity of the house to indulge in the practice. 19 The relevant issues have never been weighed in this case. The District Court's ruling would be entitled to a presumption of validity if those various factors had been considered. But the District Court made no such considered judgment. It disposed of the case on the basis of mootness, a ruling now conceded to be erroneous. The case should go back for a consideration of the nature and extent of the web which this investment banking house has woven over industry and its effect on the 'elimination of competition' within the meaning of § 8 of the Clayton Act.4 Unless we know that much, we are in no position to judge the service an injunction against future violations may do. Unless we know that much, we are in no position to carry out Woodrow Wilson's policy expressed in § 8 of the Clayton Act that those interlocking directorates should be prevented which make 'those who affect to compete in fact partners and masters of some whole field of business.' Message, Joint Session of the Houses of Congress, Jan. 20, 1914. 1 Sec. 8. '* * * No person at the same time shall be a director in any two or more corporations, any one of which has capital, surplus, and undivided profits aggregating more than $1,000,000, engaged in whole or in part in commerce, * * * if such corporations are or shall have been theretofore, by virtue of their business and location of operation, competitors, so that the elimination of competition by agreement between them would constitute a violation of any of the provisions of any of the antitrust laws. * * *' 38 Stat. 730, 15 U.S.C. § 19, 15 U.S.C.A. § 19. 2 Fed.Rules Civ.Proc. 12(b)(6), 56, 28 U.S.C.A. 3 '§ 11. Authority to enforce compliance with sections two, three, seven, and eight of this Act by the persons respectively subject thereto is hereby vested * * * in the Federal Trade Commission where applicable to all other character of commerce to be exercised as follows: 'Whenever the Commission * * * shall have reason to believe that any person is violating or has violated any of the provisions of sections two, three, seven, and eight of this Act, it shall issue and serve upon such person and the Attorney General a complaint stating its charges in that respect, and containing a notice of a hearing * * *. If upon such hearing the Commission * * * shall be of the opinion that any of the provisions of said sections have been or are being violated, it shall make a report in writing, in which it shall state its findings as to the facts, and shall issue and cause to be served such person an order requiring such person to cease and desist from such violations, and divest itself of the stock, or other share capital, or assets, held or rid itself of the directors chosen contrary to the provisions of sections seven and eight of this Act, if any there be, in the manner and within the time fixed by said order. * * * (15 U.S.C., Supp. V, § 21.)' 4 Cf. United States v. Hamburg-Amerikanische Packet-Fahrt-Actien Gesellschaft, 1916, 239 U.S. 466, 36 S.Ct. 212, 60 L.Ed. 387. 5 'When defendants are shown to have settled into a continuing practice or entered into a conspiracy violative of antitrust laws, courts will not assume that it has been abandoned without clear proof. * * * It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.' United States v. Oregon State Medical Society, 1952, 343 U.S. 326, 333, 72 S.Ct. 690, 695, 96 L.Ed. 978. 6 United States v. Aluminum Co. of America, supra, 148 F.2d at page 448. 7 Cf. United States v. United States Gypsum Co., 1950, 340 U.S. 76, 89, 71 S.Ct. 160, 169, 95 L.Ed. 89, on review of particular anti-trust decree provisions. 8 See Kramer, Interlocking Directorships and the Clayton Act After 35 Years, 59 Yale L.J. 1266. 9 We should not be understood as deciding whether corporations can violate § 8 or, for other reasons, be enjoined under the statute. 1 See Brandeis, The Endless Chain, Harpers' Weekly, Dec. 6, 1913, p. 13, quoted in Lief, The Brandeis Guide to the Modern World, p. 111. 2 See his testimony in Hearings, H.R.Committee on the Judiciary, 63d Cong., 2d Sess., on Trust Legislation, vol. 2, p. 922, quoted in Lief, op. cit., supra, note 1, p. 113. 3 Hearings, Temporary National Economic Committee, 76th Cong., 3d Sess., Pt. 24, p. 12400. 4 In United States v. Sears, Roebuck & Co., D.C., 111 F.Supp. 614, decided April 28, 1953, the court ruled that Congress intended by § 8 'to nip in the bud incipient violations of the antitrust laws by removing the opportunity or temptation to such violations through interlocking directorates.'
78
345 U.S. 559 73 S.Ct. 891 97 L.Ed. 1244 AVERYv.STATE OF GEORGIA. No. 648. Argued April 30, 1953. Decided May 25, 1953. Opinion Conformed to July 14, 1953. See 76 S.E.2d 620. Mr. Frank M. Gleason, Rossville, Ga., for petitioner. Mr. M. H. Blackshear, Jr., Atlanta, Ga., for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 Petitioner was tried for rape in the Superior Court of Fulton County, Georgia. He was convicted and sentenced to death. The Supreme Court of Georgia affirmed after overruling petitioner's contention that the jury which convicted him had been selected by a means repugnant to the Equal Protection Clause of the Fourteenth Amendment.1 We granted certiorari to review this claim. 345 U.S. 903, 73 S.Ct. 651. 2 The indictment, upon which petitioner was tried, was returned by a grand jury in Walker County, Georgia. A change of venue was granted and the cause removed to Fulton County. By proper pleadings petitioner, a Negro, challenged the array of petit jurors selected to try his case; he charged that discrimination had been practiced against members of his race. Testimony was then taken, and thereafter the trial court overruled the challenge. 3 The salient facts, developed in this hearing, are undisputed. Under Georgia law the task of organizing panels of petit jurors for criminal cases falls upon a county Board of Jury Commissioners. In discharging this responsibility the Commissioners, at stated intervals, select prospective jurors from the county tax returns. Their list is then printed; the names of white persons on this list are printed on white tickets; the names of Negroes are printed on yellow tickets. These tickets—white and yellow—are placed in a jury box. A judge of the Superior Court then draws a number of tickets from the box. The tickets are handed to a sheriff who in turn entrusts them to a clerk. It is the clerk's duty to 'arrange' the tickets and to type up, in final form, the list of persons to be called to serve on the panel. 4 Approximately sixty persons were selected to make up the panel from which the jury in this particular case was drawn. The judge who picked out the tickets—bearing the names of persons composing the panel—testified that he did not, nor had he ever, practiced discrimination in any way, in the discharge of that duty. There is no contradictory evidence. Yet the fact remains that there was not a single Negro in that panel. The State concedes that Negroes are available for jury service in Fulton County, and we are told that Negroes generally do serve on juries in the courts of that county. The question we must decide, based upon our independent analysis of the record,2 is whether petitioner has made a sufficient showing of discrimination in the organization of this particular panel. We think he has. 5 The Jury Commissioners, and the other officials responsible for the selection of this panel, were under a constitutional duty to follow a procedure—'a course of conduct'—which would not 'operate to discriminate in the selection of jurors on racial grounds.' Hill v. State of Texas, 1942, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559. If they failed in that duty, then this conviction must be reversed—no matter how strong the evidence of petitioner's guilt. That is the law established by decisions of this Court spanning more than seventy years of interpretation of the meaning of 'equal protection.'3 6 Petitioner's charge of discrimination in the jury selection in this case springs from the Jury Commissioners' use of white and yellow tickets. Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate. Further, the practice has no authorization in the Georgia statutes—which simply enjoin the Commissioners to select 'upright and intelligent men to serve as jurors * * *.'4 It is important to note that the Supreme Court of Georgia, in this case, specifically disapproved of the use of separately colored tickets in Fulton County, saying that it constituted 'prima facie evidence of discrimination'. (70 S.E.2d 722.) 7 We agree. Even if the white and yellow tickets were drawn from the jury box without discrimination, opportunity was available to resort to it at other stages in the selection process. And, in view of the case before us, where not a single Negro was selected to serve on a panel of sixty—though many were available—we think that petitioner has certainly established a prima facie case of discrimination. 8 The court below affirmed, however, because petitioner had failed to prove some particular act of discrimination by some particular officer responsible for the selection of the jury; and the State now argues that it is petitioner's burden to fill this 'factual vacuum.' We cannot agree. If there is a 'vacuum' it is one which the state must fill, by moving in with sufficient evidence to dispel the prima facie case of discrimination. We have held before,5 and the Georgia Supreme Court, itself, recently followed these decisions,6 that when a prima facie case of discrimination is presented, the burden falls, forthwith, upon the state to overcome it. The State failed to meet this test. 9 Reversed. 10 Mr. Justice BLACK concurs in the result. 11 Mr. Justice JACKSON took no part in the consideration or decision of this case. 12 Mr. Justice REED, concurring. 13 I concur in the reversal. My concurrence is based on the undisputed facts presented by the record. The facts that make a prima facie case of discrimination in the selection of petitioner's jury are as follows. The population of Fulton County is 691,797. Negroes comprise 25% or 165,814. The tax receiver's digest from which the jury list is selected has 105,035 white citizens and 17,736 Negroes—14%. The jury list for the year in question had 20,509 white and 1,115 Negroes—5%. From that list a number, 150 to 200, were drawn for service on each of the divisions of the court. Evidently these were for a week or a term's service. The venire from which the trial jury for Avery was selected numbered 60. All were white. 14 These facts establish a prima facie case of discrimination which the record does not rebut. 15 Mr. Justice FRANKFURTER, concurring. 16 It is undisputed that the drawings here were made from a box containing white and colored slips differentiated according to racial lines, white for white veniremen and yellow for colored. The slips were indiscriminately placed in the box and were drawn from the box by a county court judge. There was testimony from a recent member of the county Board of Jury Commissioners that the use of these white and yellow slips was designed for purposes of racial discrimination, and it has not been shown that they could serve any other purpose. So far as the particular facts of this case are concerned, we may accept the testimony of the judge who drew the slips from the box as to the honesty of his purpose; that testimony does not refute the fact that there were opportunities to discriminate, as experience tells us there will inevitably be when such differentiating slips are used. In this case the opportunities are obvious, partly because the aperture in the box was sufficiently wide to make open to view the color of the slips and partly because of the subsequent use or abuse that could be made of the slips however fairly drawn. However that may be, opportunity for working of a discriminatory system exists whenever the mechanism for jury selection has a component part, such as the slips here, that differentiates between white and colored; such a mechanism certainly cannot be countenanced when a discriminatory result is reached. The stark resulting phenomenon here was that somehow or other, despite the fact that over 5% of the slips were yellow, no Negro got onto the panel of 60 jurors from which Avery's jury was selected. The mind of justice, not merely its eyes, would have to be blind to attribute such an occurrence to mere fortuity. 17 Accordingly, I concur in the judgment. 1 Avery v. State, 1952, 209 Ga. 116, 70 S.E.2d 716. 2 Norris v. State of Alabama, 1935, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. 3 E.g., Neal v. State of Delaware, 1881, 103 U.S. 370, 26 L.Ed. 567; Rogers v. State of Alabama, 1904, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Norris v. State of Alabama, supra; Pierre v. State of Louisiana, 1939, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Cassell v. State of Texas, 1950, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. 4 Ga.Code Ann. § 59—106. See Crumb v. State, 1949, 205 Ga. 547, 54 S.E.2d 639. 5 Norris v. State of Alabama, supra, 294 U.S., at pages 594 595, 598, 55 S.Ct. 582, 583; Hill v. State of Texas, 1942, 316 U.S. 400, 405—406, 62 S.Ct. 1159, 1161, 1162, 86 L.Ed. 1559; Patton v. State of Mississippi, 1947, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76. 6 Crumb v. State, supra.
12
345 U.S. 639 73 S.Ct. 917 97 L.Ed. 1312 CENTRAL BANKv.UNITED STATES. No. 521. Argued April 29, 1953. Decided June 1, 1953. Mr. George H. Koster, San Francisco, Cal., for petitioner. Mr. Lester S. Jayson, New York City, for respondent. Mr. Justice REED delivered the opinion of the Court. 1 This grant of certiorari requires us to construe the provision of the Assignment of Claims Act of 1940, 54 Stat. 1029, 31 U.S.C. § 203, 31 U.S.C.A. § 203, which provides: 2 'Any contract entered into by the War Department or the Navy Department may provide that payments to an assignee of any claim arising under such contract shall not be subject to reduction or set-off, and if it is so provided in such contract, such payments shall not be subject to reduction or set-off for any indebtedness of the assignor to the United States arising independently of such contract.'1 3 The facts of the case are not in dispute. The Graham Ship Repair Company, a California partnership, entered into a contract for ship repair work with the Navy Department on December 30, 1944. As permitted by the Assignment of Claims Act of 1940, the contract authorized the Graham Company to assign the proceeds of the contract to a bank and payments to the assignee bank were not to be 'subject to reduction or set off for any indebtedness of the Contractor to the Government arising independently of this contract.' 4 After the contract had been made, the Graham Company arranged with petitioner, a California banking corporation, for the financing of the ship repair work. As security for the funds to be advanced, Graham assigned the proceeds payable under the contract to petitioner. This assignment was made on January 31, 1945. The Contracting Officer, Bureau of Ships, Navy Department, the Disbursing Officer and the General Accounting Office were duly notified of the assignment as required by the Act. 5 Pursuant to the assignment, the Graham Company received substantial sums of money from petitioner for use in performing the contract. During the course of performance Graham failed to remit to the Collector of Internal Revenue $453,469.55 in withholding taxes, and $11,462.91 in federal unemployment taxes, which it had withheld, pursuant to §§ 1401 and 1622 of the Internal Revenue Code, 26 U.S.C.A. §§ 1401, 1622, from the salaries and wages of its employees who were engaged in work called for by the Navy contract. Instead of remitting these sums to the Collector, Graham had converted them to its own use. Because of this dereliction the contract was terminated by the Navy on March 31, 1946, and the individuals of the Graham partnership pleaded guilty to an indictment for willful attempt to evade the payment of the withheld taxes. 6 At the time the contract was terminated, Graham's obligation to the Government for the unpaid withholding taxes, with interest and penalties, aggregated $616,750.95. At that time the sum of $110,966.08 was due Graham from the Government for work performed under the contract. Also at that time Graham was indebted to petitioner in an amount in excess of $110,966.08 for advances made by petitioner pursuant to the assignment. 7 Petitioner, as assignee, filed a claim for the balance due from the Government under the contract. The Commissioner of Internal Revenue also claimed that amount. The Comptroller General ruled that the $110,966.08 was a proper set-off against Graham's tax indebtedness and accordingly reduced such indebtedness to $415,018.17. 8 Thereafter petitioner brought this suit in the Court of Claims. That court held that the set-off made by the Comptroller General was proper because the tax deductions withheld were 'not entirely independent of such contract', Central Bank v. United States, Ct.Cl., 105 F.Supp. 992, 994, and that petitioner was therefore not entitled to recover under the assignment. 9 Prior to 1940, an assignment such as Graham made to petitioner would have been of no effect as against the United States. Under the Anti-Assignment Statutes, R.S. §§ 3477 and 3737, while the assignment might in some circumstances have been good as between the assignor and assignee, Martin v. National Surety Co., 300 U.S. 588, 57 S.Ct. 531, 81 L.Ed. 822, it could not operate to the detriment of rights of the United States. Any set-off which the United States had against an assignor would have been effective against the assignee. 10 The Assignment of Claims Act of 1940, amending the Anti-Assignment Statutes,2 validated the assignment of moneys due or to become due under any government contract if the assignment were made to a financing institution. The Act authorized the War and Navy Departments to limit the Government's previous rights of set-off. See R.S. §§ 3477, 3737, as amended 31 U.S.C.A. § 203, 41 U.S.C.A. § 15. It provided, see 31 U.S.C. § 203, 31 U.S.C.A. § 203, supra, p. 1, 'that payments to an assignee of any claim arising under such contract shall not be subject to reduction or set-off'. 11 The Assignment of Claims Act of 1940 was evidently designed to assist in the national defense program through facilitating the financing of defense contracts by limiting the Government's power to reduce properly assigned payments.3 Borrowers were not to be penalized in security because one contracting party was the Government. Contractors might well have obligations to the United States not imposed by the contract from which the payments flowed, as for example the contractor's income tax for prior earnings under the contract. The taxes here involved are another good illustration of the dangers to lenders. 12 The clause in question which prohibits set-offs for 'any indebtedness of the assignor to the United States arising independently of such contract,' was embodied in an amendment introduced by Senator Barkley during debate on the Act.4 In proposing the amendment, the Senator stated: 13 'Mr. President, the amendment merely provides that when a contractor, in order to obtain money so that he may perform his contract with the Government under the defense program, assigns his contract to a bank or trust company in order to get money with which to proceed with the work, it shall not be permissible to offset against the claim or contract later an indebtedness which the contractor may owe the Government on account of some other contract or some other situation. * * *' 14 Otherwise, 15 '* * * the Government could come in and assert a claim against the contractor on account of something else which had no relationship whatever to the contract and the defense program.' In the decision below the court said: 16 'The assignee knew that the contractor would be required to withhold and pay taxes to the defendant. The obligation of the contractor for the taxes in question arose before the partners converted such taxes to their own use and such obligation was therefore directly associated with the contract. 17 'In order to be independent, as we think that term was used and intended by the Assignment of Claims Act, the indebtedness must arise irrespective of, exclusive of, and separate from the contract, and must have no direct relation with such contract.'5 18 To support its position, the words of United States v. Munsey Trust Co. were relied upon: 19 '(One) is not compelled to lessen his own chance of recovering what is due him by setting up a fund undiminished by his claim, so that others may share it with him.' 332 U.S. 234, 240, 67 S.Ct. 1599, 1602, 91 L.Ed. 2022. 20 The Munsey case is inapplicable. It turns on the ability of the Government to reimburse itself ahead of a surety for sums expended to pay laborers out of funds withheld by the United States from the surety's principal. No problem of assignment was involved and we held the Government could set off its independent claim against the surety. 21 The requirement that Graham withhold taxes from the 'payment of wages' to its employees and pay the same over to the United States did not arise from the contract. The requirement is squarely imposed by §§ 1401 and 1622 of the Internal Revenue Code.6 Without a government contract Graham would owe the statutory duty to pay over the taxes due, just as it would to pay its income tax on profits earned. Graham's embezzlement lay neither in execution nor in breach of the contract. It arose from the conversion of the withheld taxes which Graham held as trustee for the United States pursuant to § 3661 of the code.7 Assignor Graham's indebtedness to the United States arose, we think, 'independently' of the contract. 22 Finally it is urged that the Act should be construed so as to protect the United States. The short answer to this is that the Act should be construed so as to carry out the purpose of Congress to encourage the private financing of government contracts.8 To grant the Government its sought-for rights of set-off under the circumstances of this case, would be to defeat the purpose of Congress. It would require the assignee to police the assignor's accounting and payment system. It would increase the risk to the assignee, the difficulty of the assignor in financing the performance, and the ultimate cost to the Government. 23 Reversed. 24 The CHIEF JUSTICE, Mr. Justice BURTON and Mr. Justice CLARK dissent. 25 Mr. Justice BLACK and Mr. Justice JACKSON took no part in the consideration or decision of this case. 1 Amended so as to include the Department of the Air Force by the Act of July 26, 1947, 61 Stat. 501, 508, 31 U.S.C. (Supp. III) § 203, 31 U.S.C.A. § 203. 2 The issue before us has been prospectively settled for others by the 1951 Assignment of Claims Act, 65 Stat. 41, 42, 31 U.S.C. (Supp. V) § 203, 31 U.S.C.A. § 203. That Act amended the Assignment of Claims Act of 1940 by rephrasing subsection 4 so as to bar by specific words the United States from setting off 'any liability of the assignor on account of (1) renegotiation * * * (2) fines, (3) penalties * * *, or (4) taxes, social security contributions, or the withholding or nonwithholding of taxes or social security contributions, whether arising from or independently of such contract. 'Except as herein otherwise provided, nothing in this Act, as amended, shall be deemed to affect or impair rights or obligations heretofore accrued.' 65 Stat. 41, 42. This amendment was caused by uneasiness among lenders because of rulings of the Comptroller General: 'In an opinion dated May 17, 1949, the Comptroller General held that, in the event of a price revision under a Government contract, any amount in excess of the contract price as so revised may either be withheld from payment to the assignee 'or recovered directly from the assignee if already paid.' Generally, when any payment is received by an assignee bank, it is immediately applied to the contractor's loan, and the excess is released to the borrower. In several instances, long after full payment of a bank's loan to a contractor, the Comptroller General has made claims for recovery of payments previously made to the bank assignee. 'It had also been the understanding of banks that the statute protected them against set-off by the Government on account of any claims by the Government against the contractor arising outside of the terms of the assigned contract. However, in an opinion dated May 15, 1950, the Comptroller General ruled that claims by the Government against a contractor on account of unpaid social-security contributions and withheld income taxes were claims which did not arise independently of the assigned contract.' S.Rep. No. 217, 82d Cong., 1st Sess., p. 2. 3 Hearings before the Senate Committee on Banking and Currency on S. 4340, 76th Cong., 3d Sess., p. 2 et seq.; 86 Cong.Rec. 12803; H.R.Rep. No. 2925, 76th Cong., 3d Sess., p. 2; S.Rep. No. 2136, 76th Cong., 3d Sess., p. 2. 4 86 Cong.Rec. 12803. 5 Central Bank v. United States, 105 F.Supp. 992, 994. 6 '§ 1400. Rate of tax. 'In addition to other taxes, there shall be levied, collected, and paid upon the income of every individual a tax equal to the following percentages of the wages * * *. § 1401. Deduction of tax from wages—(a) Requirement. 'The tax imposed by section 1400 shall be collected by the employer of the taxpayer, by deducting the amount of the tax from the wages as and when paid. '(b) Indemnification of employer. 'Every employer required so to deduct the tax shall be liable for the payment of such tax, and shall be indemnified against the claims and demands of any person for the amount of any such payment made by such employer. § 1622. Income tax collected at source—(a) Requirement of withholding. 'Every employer making payment of wages shall deduct and withhold upon such wages a tax equal to the sum of the following: * * *.' 7 '§ 3661. Enforcement of liability for taxes collected. 'Whenever any person is required to collect or withhold any internal-revenue tax from any other person and to pay such tax over to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.' 8 United States v. Guaranty Trust Co., 280 U.S. 478, 483, 50 S.Ct. 212, 213, 74 L.Ed. 566. In the Guaranty Trust case the United States sought priority under R.S. § 3466 for its debts from embarrassed railroads. Transportation Act of 1920, Tit. II, §§ 207, 209, 210, 41 Stat. 456, 457—469. Although there was no specific waiver of § 3466, similar to the waiver of the right of set-off or reduction here claimed, this Court held: 'To have given priority to debts due the United States pursuant to title 2 would have defeated the purpose of Congress. It not only would have prevented the re-e stablishment of railroad credit among bankers and investors, but it would even have seriously impaired the market value of outstanding railroad securities. It would have deprived the carriers of the credit commonly enjoyed from supplymen and others; would have seriously embarrassed the carriers in their daily operations; and would have made necessary a great enlargement of their working capital. The provision for loans under section 210 would have been frustrated. For, carriers could ill afford voluntarily to contract new debts thereunder which would displace, pro tanto, their existing bonded indebtedness. The entire spirit of the act makes clear the purpose that the rule leading to such consequences should not be applied.' 280 U.S. at page 485, 50 S.Ct. at page 214.
1112
345 U.S. 653 73 S.Ct. 906 97 L.Ed. 1325 TRANSCONTINENTAL & WESTERN AIR, Inc.v.KOPPAL. No. 509. Argued April 8 and 9, 1953. Decided June 1, 1953. Mr. Horace G. Hitchcock, New York City, for petitioner. Messrs. Fred J. Freel and Ray D. Jones, Jr., Kansas City, Mo., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 This case presents two questions: (1) whether a discharged employee of a carrier that is subject to the Railway Labor Act is precluded by that Act from resorting to a state-recognized cause of action for wrongful discharge and, if not, (2) whether, in such action, he must show that he has exhausted his administrative remedies, under his contract of employment. For the reasons hereafter stated, our answer to the first question is no and to the second, yes, provided the applicable state law so requires. After stating the case, we shall discuss the second question first. 2 Respondent Koppal is a citizen of Kansas who, in 1949, was employed as a master mechanic in Kansas City, Missouri, by petitioner, Transcontinental & Western Air, Inc., a Delaware corporation. At all times material to this case, petitioner has been a carrier by air, engaged in interstate commerce and subject to Title II of the Railway Labor Act.1 The terms of respondent's employment contract were stated in a written agreement between petitioner and the International Association of Machinists. That association was a union which, for collective-bargaining purposes, represented respondent and the other mechanics in the employ of petitioner, although respondent was not a member of the union. 3 November 8, 1949, respondent reported to his employer by telephone that he was not well and would not be able to work that day. Before noon, a representative from petitioner's Industrial Relations Department made an unexpected call at respondent's home. He found respondent there with two of petitioner's employees, one of whom also had taken sick leave. While the testimony is conflicting, there is substantial evidence to support a conclusion that respondent was not sufficiently ill to justify his staying at home and that, by prearrangement, he met there with two other employees while preparing to take an examination to qualify as a flight engineer. On respondent's return to work the next day, he was suspended from employment on a charge of abuse of the sick-leave provisions of his contract and notified that a hearing would be held on that charge November 11, pursuant to the grievance procedure in his contract. He attended the hearing, which was held before a representative of petitioner other than the one bringing the complaint. At its conclusion, the hearing officer stated that there had been a severe abuse of the sick-pay policy and that respondent would be discharged. In view of respondent's past favorable record, the hearing officer asked him whether he would prefer to resign and advised him that he could appeal even if he resigned. 4 Respondent resigned, stating that he did so 'under protest.' He took no appeal under his employment contract but, June 30, 1950, instituted the present proceeding in the United States District Court for the Western District of Missouri, claiming diversity of citizenship and seeking $7,500 compensatory and $15,000 punitive damages. 5 During the trial, which was before a jury, petitioner (then defendant) moved for a directed verdict in its favor and made a similar motion at the close of evidence. Both motions were denied and the jury returned a verdict of $7,500 for respondent. The court set aside the verdict and dismissed the complaint on the ground that respondent had failed to appeal the original decision of the hearing officer and had otherwise failed to exhaust the remedies prescribed in his employment contract. The Court of Appeals, with one judge dissenting, reversed that judgment and remanded the case for further proceedings. 8 Cir., 199 F.2d 117. Because of differing opinions expressed as to the effect of our decisions in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, and Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795, and due to the importance of the case in relation to the Railway Labor Act, we granted certiorari. 344 U.S. 933, 73 S.Ct. 504.2 6 The jurisdiction of the District Court rested upon diversity of citizenship and an adequate amount in controversy. The complaint sought judgment for damages resulting from the alleged unlawful discharge of respondent in violation of a contract of employment made in Missouri, to be performed in Missouri and agreed by the parties to be a 'Missouri contract.' Accordingly, if the Railway Labor Act were not involved, there would be no question but that the substantive law of Missouri should determine the requirements of the cause of action, the interpretation of the contract and the measure of damages to be applied, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. 7 No decision of the Supreme Court of Missouri has been cited on the point but the law of Missouri has been shown, by the following cases, to be that an employee must exhaust the administrative remedies under his contract of employment in order to sustain his cause of action in such a case. 8 The United States Court of Appeals for the Eighth Circuit, in 1934, affirmed a decision of the United States District Court for the Eastern District of Missouri to that effect. Harrison v. Pullman Co., 68 F.2d 826. That was a diversity case, removed from a Missouri state court, in which a discharged porter sued his employer, the Pullman Company, for damages for his alleged unlawful discharge in November, 1926. The terms of his employment were stated in a printed agreement which contained a complete code for the adjustment of such disputes. The code called for an initial appeal by the employee to a district official of the company, a subsequent appeal to the highest local officer of the company designated to handle such matters, then an appeal to the Zone General Committee and finally to the Bureau of Industrial Relations. The porter made no substantial attempt to follow this procedure beyond the district official and none whatever to reach the Zone General Committee. Instead, about five years later, he brought suit and, in that litigation, the United States Court of Appeals, in affirming a directed verdict for the employer, said: 9 'Appellant in terms sues because of an alleged breach of this contract, and, to prevail, he must show that he has brought himself within its terms and has been unable to secure a satisfactory adjustment by the means therein expressly provided. This he has failed to do, and for this reason he is unable to present his case in court as a justiciable controversy.' 68 F.2d at page 827. 10 Similarly, in 1936, the St. Louis Court of Appeals, Missouri, in Reed v. St. Louis S.W.R. Co., 95 S.W.2d 887 (not published in State Reports), took a like position. There a discharged conductor sued his employer, the St. Louis Southwestern Railroad Company, for damages for his alleged unlawful discharge in 1928. The terms of his employment were stated in a written contract between the Order of Railway Conductors and the railroad. This prescribed a complete code for the hearing and review of discharges. The conductor was charged with intoxication and attended a prescribed hearing, which was held on that charge, before an assistant superintendent of the company. This resulted in the conductor's discharge but he resorted to none of the administrative appeals prescribed in the code. Instead, he sued his employer in a state court and won a verdict and judgment for damages due to his discharge. The St. Louis Court of Appeals reversed that judgment because the trial court had failed to sustain the employer's demurrer which was based on the ground that the conductor had failed to exhaust the remedies prescribed in his contract.3 11 Respondent's contract, in the instant case, consisted simply of his employment by petitioner pursuant to the terms of a written agreement between petitioner and the mechanics and related employees in its service, as represented by the International Association of Machinists. That agreement was entered into 'in accordance with the provisions of Title II of the Railway Labor Act, as amended * * *.' It contained detailed provisions as to grievance procedure and sick leave. It included provisions that no employee in respondent's status shall be discharged— 12 'without a fair hearing before a designated representative of the Company other than the one bringing complaint against the employee. * * * At a reasonable time prior to the hearing, such employee and his duly authorized representative will be apprised, in writing, of the precise charge and given a reasonable opportunity to secure the presence of necessary witnesses. * * * A written decision will be issued within five (5) work days after the close of such hearing. If the decision is not satisfactory, then appeal may be made in accordance with the procedure prescribed in Step 3.' 13 Step 3 provided for an appeal to the chief operating officer of the company. Notice of intent to appeal must be in writing and made within ten work days after the above-mentioned decision which is part of Step 2. If the decision in Step 3 is not satisfactory to the union, the matter then may be referred by the system general chairman, acting for the union, to the system board of adjustment or, by mutual agreement, to arbitration. This procedure is comparable to that described in the Railway Labor Act, which provides that disputes between an employee and a carrier 'shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes', then by appropriate adjustment boards and finally by the National Air Transport Adjustment Board. 49 Stat. 1189—1190, 45 U.S.C. §§ 184, 185, 45 U.S.C.A. §§ 184, 185. 14 Under the law of Missouri, as shown above, respondent was required to show exhaustion of administrative remedies under his employment contract in order to sustain his cause of action. As he did not do so, the District Court's dismissal of his complaint was justified, unless the fact that petitioner was a carrier subject to the Railway Labor Act or the fact that the employment contract was drafted pursuant to that Act should make a difference. 15 The important point is that while the employment contract conforms to the policy of the Railway Labor Act and the Act provides a procedure for handling grievances so as to avoid litigation and interruptions of service, the Act does not deprive an employee of his right to sue his employer for an unlawful discharge if the employee chooses to do so. 16 '(W)e find nothing in that (Railway Labor) Act which purports to take away from the courts the jurisdiction to determine a controversy over a wrongful discharge or to make an administrative finding a prerequisite to filing a suit in court. * * * The District Court and the Circuit Court of Appeals properly decided that petitioner was not required by the Railway Labor Act to seek adjustment of his controversy with the railroad as a prerequisite to suit for wrongful discharge.' Moore v. Illinois Central R. Co., 312 U.S. 630, 634, 636, 61 S.Ct. 754, 756, 85 L.Ed. 1089. 17 We amplified the foregoing statement in Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 244, 70 S.Ct. 577, 580, 94 L.Ed. 795, as follows: 18 'Moore (in 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089) was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board.' 19 The result is that, whereas, under the Railway Labor Act, the Adjustment Board has exclusive jurisdiction to adjust grievances and jurisdictional disputes of the type involved in the Slocum case, that Board does not have like exclusive jurisdiction over the claim of an employee that he has been unlawfully discharged. Such employee may proceed either in accordance with the administrative procedures prescribed in his employment contract or he may resort to his action at law for alleged unlawful discharge if the state courts recognize such a claim. Where the applicable law permits his recovery of damages without showing his prior exhaustion of his administrative remedies, he may so recover, as he did in the Moore litigation, supra, under Mississippi law.4 20 On the other hand, if the applicable local law, as in Missouri, requires an employee to exhaust his administrative remedies under his employment contract in order to sustain his cause of action, he must show that he has done so. Here respondent was employed by a carrier, subject to Title II of the Railway Labor Act, and his employment contract contained many administrative steps for his relief, all of which were consistent with that Act. Accordingly, while he was free to resort to the courts for relief, he was there required by the law of Missouri to show that he had exhausted the very administrative procedure contemplated by the Railway Labor Act. In the instant case, he was not able to do so and his complaint was properly dismissed. 21 The judgment of the Court of Appeals, therefore, is reversed. The judgment of the District Court is affirmed and the cause is remanded to it. 22 Reversed and remanded. 23 Mr. Justice DOUGLAS dissents. 24 Mr. Justice REED took no part in the consideration or decision of this case. 1 49 Stat. 1189 et seq., 45 U.S.C. §§ 181—188, 45 U.S.C.A. §§ 181—188. 2 The grant was limited to questions 1 and 2 presented by the petition for the writ, viz.: '1. Whether in a diversity action for wrongful discharge by an employee against a carrier subject to the provisions of the Railway Labor Act, the Act precludes the application by the District Court of state law, otherwise controlling, governing the right to bring the action. '2. Whether the decisions of this Court in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, and Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795, bar the application of state law requiring an employee to attempt to adjust his dispute with his employer before he may seek redress in state courts for alleged breach of a collective bargaining agreement made pursuant to the Railway Labor Act.' 3 '* * * This assignment of error is based upon the rule that where a contract of employment provides, as in the instant case, that a discharged employee may seek redress by appealing to certain designated officers, boards, or tribunals, such an employee is required to pursue and exhaust his contract remedy and cannot properly complain to a court for redress until he has exhausted the remedies accorded him by his contract. The point is well taken.' 95 S.W.2d at pages 888—889. '* * * It is well settled that, where contracting parties either agree or are required by law to resort to a designated tribunal for the adjustment of controversies, they must exhaust such remedy before resorting to the courts for redress.' Glass v. Hoblitzelle, Tex.Civ.App., 83 S.W.2d 796, 802. See also, Bell v. Western R. Co., 228 Ala. 328, 153 So. 434. This quotation and citation are relied on in the Reed case, 95 S.W.2d at page 889. 4 Moore received a judgment for $4,183.20, as damages for his wrongful discharge, without establishing his exhaustion of his administrative remedies under his employment contract. For related proceedings, see Moore v. Yazoo & M.V.R. Co., 176 Miss. 65, 166 So. 395; Moore v. Illinois Central R. Co., 180 Miss. 276, 176 So. 593; D.C., 24 F.Supp. 731; 5 Cir., 112 F.2d 959; 5 Cir., 136 F.2d 412. See also, Texas & N.O.R. Co. v. McCombs, 143 Tex. 257, 183 S.W.2d 716.
910
345 U.S. 663 73 S.Ct. 900 97 L.Ed. 1331 POLIZZIv.COWLES MAGAZINES, Inc. No. 287. Argued March 10, 1953. Decided June 1, 1953. Petition for Clarification Denied June 15, 1953. See 345 U.S. 988, 73 S.Ct. 1128. Mr. A. C. Dressler, Miami, Fla., for petitioner. Mr. Manuel Lee Robbins, New York City, for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 Respondent, an Iowa corporation which publishes Look magazine, maintains no offices in Florida, but sells its magazines to two independent wholesale companies which distribute them to retailers in Florida. Respondent does employ two 'circulation road men' whose job is to check retail outlets in a multi-state area which includes Florida. These two road men cover separate and mutually exclusive districts, and neither exercises any supervision over the other. Petitioner, a resident of Florida, brought suit against Respondent in the Circuit Court of Dade County, Florida, for allegedly libelous matter printed in Look magazine. Respondent moved to dismiss or in lieu thereof to quash the return of service, made on an agent of one of the distributing wholesalers. Before the state court acted on this motion, Respondent removed the action to the United States District Court for the Southern District of Florida. See 28 U.S.C. (Supp. V) §§ 1332, 1441, 1446, 1447(b), 28 U.S.C.A. §§ 1332, 1441, 1446, 1447(b). That court issued an additional summons which was served on Briardy, one of Respondent's road men, 'as a managing agent of (Respondent) transacting business for it in the State of Florida * * *.' See 28 U.S.C. (Supp. V) § 1448, 28 U.S.C.A. § 1448; Fed.Rules Civ.Proc., 4(d)(3), (7), 28 U.S.C.A.; Fla.Stat.Ann. § 47.17(5). On Petitioner's motion, the original state court service was quashed. Respondent then moved the court 'to dismiss this action or in lieu thereof to quash the return of purported or attempted service of the additional summons * * *.' The District Court, without passing upon the motion to quash the return of service, dismissed the action on the ground that it did 'not have jurisdiction under Section 1391, sub-section C, New Title 28, United States Code' because Respondent 'was not, at the time of the service of the summons, doing business in (the Southern District of Florida).' The Court of Appeals for the Fifth Circuit affirmed on the same ground, 197 F.2d 74, and we granted certiorari. 344 U.S. 853, 73 S.Ct. 94. 2 The only question in this case on the record before us is whether the District Court correctly dismissed the action for want of jurisdiction. 3 Both courts below held that the District Court lacked jurisdiction, but they reached that conclusion by deciding that Respondent was not 'doing business' in Florida within the meaning of 28 U.S.C. (Supp. V) § 1391(c), 28 U.S.C.A. § 1391(c). Section 1391 is a general venue statute. In a case where it applies, if its requirements are not satisfied, the District Court is not deprived of jurisdiction, although dismissal of the case might be justified if a timely objection to the venue were interposed. 28 U.S.C. (Supp. V) § 1406, 28 U.S.C.A. § 1406. But even on the question of venue, § 1391 has no application to this case because this is a removed action. The venue of removed actions is governed by 28 U.S.C. (Supp. V) § 1441(a), 28 U.S.C.A. § 1441(a), and under that section venue was property laid in the Southern District of Florida. Lee v. Chesapeake & O.R. Co., 260 U.S. 653, 43 S.Ct. 230, 67 L.Ed. 443; General Investment Co. v. Lake Shore & M.S.R. Co., 260 U.S. 261, 270—279, 43 S.Ct. 106, 67 L.Ed. 244; Moss v. Atlantic Coast Line R. Co., 2 Cir., 157 F.2d 1005.1 The pertinent provisions of the two statutes are set forth in the margin.2 Section 1391(a) limits the district in which an action may be 'brought.' Section 1391(c) similarly limits the district in which a corporation may be 'sued.' This action was not 'brought' in the District Court, nor was Respondent 'sued' there; the action was brought in a state court and removed to the District Court. Section 1441(a) expressly provides that the proper venue of a removed action is 'the district court of the United States for the district and division embracing the place where such action is pending.' The Southern District of Florida is the district embracing Dade County, the place where this action was pending. 28 U.S.C. (Supp. V) § 89, 28 U.S.C.A. § 89. 4 Therefore, the question whether Respondent was 'doing business' in Florida within the meaning of § 1391(c) is irrelevant, and the discussion of that question is beside the point. The District Court based its holding that it lacked jurisdiction on a statute which has no application to the case, and the Court of Appeals affirmed on the same reasoning. 5 We express no opinion whether Respondent was 'doing business' in Florida within the meaning of the due process requirements set out in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, because Respondent has not contended that the International Shoe test is not met.3 Nor do we decide whether the District Court acquired jurisdiction of the person of Respondent by proper service, because the lower courts did not pass on the question of service. Therefore, the judgment of the Court of Appeals is reversed, and the cause is remanded to the District Court to take jurisdiction of the action and determine whether the District Court acquired jurisdiction of Respondent by proper service. 6 Reversed. 7 Mr. Justice FRANKFURTER, not having heard the argument, took no part in the consideration and disposition of this case. 8 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 9 Mr. Justice BLACK, with whom Mr. Justice JACKSON joins, concurring in part and dissenting in part. 10 Polizzi lives in Coral Gables, Florida. He has been in the construction business there for some years. Cowles Magazines, Inc., an Iowa corporation, publishes Look, a magazine circulating nationally. May 23, 1950, Look carried an article branding Polizzi as one of the ringleaders of a national gang of murderous, blackmailing prostitute-pandering criminals. Nearly 50,000 copies covered Florida. Many were displayed and distributed in Polizzi's home town. He at once wrote the publisher that the charges against him were false, demanding both retraction and apology. It did nothing. Polizzi then brought this libel suit in the state circuit court of his home county. Appearing 'specially' in the local United States District Court, the Cowles corporation obtained an order for removal of the case from state to federal court. It asked the District Court to dismiss the case without giving Polizzi a chance to have it tried on the merits. The reasons urged were that Cowles was an Iowa corporation, was not and had not been 'doing business' in Florida and consequently could not be sued in the Florida court unless it consented to be sued there. The effect of this contention was that while Polizzi could bring his libel suit in a federal district court in the corporation's home state of Iowa, no such suit could be maintained in a federal court in the state where Polizzi lived and where the criminal charges were likely to do him the most harm. Agreeing with Cowles, the District Court dismissed Polizzi's suit without giving him a chance to try the case on its merits. The Court of Appeals affirmed. For many reasons I think the dismissal was wrong and therefore concur in this Court's reversal of that dismissal. From this point on, however, I part company with the Court. 11 This Court reverses solely because both the District Court and the Court of Appeals in dismissing referred to and relied on the 'doing business' provisions of 28 U.S.C. § 1391(c), 28 U.S.C.A. § 1391(c), a venue statute not applicable to removal cases like this but to suits originally filed against corporations in United States District Courts. For this reason, not suggested by Cowles or Polizzi, the Court refuses to pass on the 'doing business' contention which Cowles did make and which both courts below decided.1 This means the case goes back for reconsideration of the same old 'doing business' question that has been hanging fire for three years. It took three years for Polizzi to get here and have the Court by-pass the 'doing business' question this time. If he is lucky enough to get that question back here and decided for him in three more years, he may then look forward to the possibility of having a jury try his case sometime along about 1957. 12 I think this Court should here and now reject Cowles' dilatory contentions. There may have been some reason for snarling up lawsuits against foreign corporations a hundred years ago because of newly expanding activities of migratory businesses. But there is no such excuse now. A large part of the business in each and every state is done today by corporations created under the laws of other states. To adjust the practical administration of law to this situation the Court in recent years has refused to be bound by old rigid concepts2 about 'doing business.' Whether cases are to be tried in one locality or another is now to be tested by basic principles of fairness,3 unless, as seems possible, this case represents a throwback to what I consider less enlightened practices. 13 Under any of the concepts, old or new, I think Cowles was doing business in Florida. It had a regular agent there, paid by the month, whose sole job was to carry on activities for Cowles in order to increase Look's circulation in that state. On this agent, who managed for the publishing corporation all the business it carried on in Florida, process was served. These facts, together with others which I need not labor, show the frivolous nature of the 'doing business' question. They show also the lack of merit in the question the Court tells the district judge to pass on: Should the 1950 notice by service on the corporation's regular Florida representative be held sufficient to require it to defend, or should the District Court now after three years' litigation quash that service and require that new notice of the suit the corporation is here defending be served on some other company employee? I venture to suggest that if this question were raised anywhere except in a court, it would be dismissed as ludicrous. 14 But aside from what has been said, there is a new statute which gives an anachronistic flavor, a sort of irrelevance to all of Cowles' dilatory motions and arguments. I refer to 28 U.S.C. § 1404(a), 28 U.S.C.A. § 1404(a), which has codified the doctrine of forum non conveniens. That statute gives district judges broad powers to transfer civil actions from one district to another 'in the interest of justice'.4 And the heart of Cowles' contention is that it would be unfair, inconvenient and unjust to subject it to a suit in the District Court of Florida. But the Iowa corporation has not denied at all that it could be subjected to this libel suit in the federal district court in Iowa or in some other district where the corporation is 'doing business.' Therefore, the question Cowles has been raising from the beginning is: In what federal district court does the fair administration of justice require that this lawsuit be tried? This poses precisely the problem which the rule of forum non conveniens is designed to meet and solve. In light of that rule I think we should reject Cowles' old dilatory motions and direct the District Court in Florida to try this case at once, unless Cowles can show that court that it would be in the interest of justice to try the case in another district. But the Court refuses to discard old outdated concepts for the new rule of convenience and fairness. Instead Polizzi is sent back to the District Court not to try his case on the merits but to listen a few more years to a debate over whether Cowles has had adequate notice of this suit and whether the corporation is 'doing business' in Florida. In the meantime, Polizzi stands convicted in the eyes of his community on the basis of an unproved story. At least since Magna Charta some people have thought that to delay justice may be to deny justice. I would order that Polizzi be given the trial he seeks.5 15 Mr. Justice BURTON, concurring in part and dissenting in part. 16 I agree that the District Court and the Court of Appeals erroneously referred to the wrong venue statute in deciding the question of 'doing business.' Like Mr. Justice BLACK I think it unfortunate that this case must be prolonged by a remand to consider again the same 'doing business' question under another statute. Unlike Mr. Justice BLACK, however, I find nothing in the majority opinion to suggest that the enlightened rationale of our more recent cases such as International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, has been abandoned or impaired. Nor do I find any hint in the majority opinion that anything in the Constitution or other federal law prohibits the trial of this case in a United States District Court in Florida. My objection is that the majority have not ruled on this question at all. 1 See also 1 Barron and Holtzoff, Federal Practice and Procedure, § 101; Charles W. Bunn, Jurisdiction and Practice of the Courts of the United States (5th ed., Charles Bunn, 1949), 146 148; Moore, Commentary on the United States Judicial Code, 199. 2 '§ 1391. Venue generally '(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside. '(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.' (Emphasis supplied.) § 1441. Actions removable generally '(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.' (Emphasis supplied.) 3 'In the case now before the Court no question of due process is involved.' Brief for Respondent in Opposition to Writ of Certiorari, p. 9. 'All this has nothing to do with due process * * *.' Brief for Respondent, p. 17. 1 The record makes clear that the 'doing business' question was the ground on which Cowles made the motion to dismiss, the ground on which the District Court dismissed the lawsuit, the ground on which the Court of Appeals affirmed, and a ground on which Cowles asked us to affirm the dismissal. The corporation's motion to dismiss asserted that 'The defendant is a corporation organized under the laws of Iowa and was not doing or carrying on business in Florida at the time of such purported or attempted service and is not doing and has never done business within the State of Florida so as to be present in Florida. * * *' Evidence of a number of witnesses was heard on this 'doing business' question. The District Court dismissed by finding 'as a matter of fact that defendant was not, at the time of the service of the summons, doing business in this district. * * *' and then related the dismissal to 28 U.S.C. § 1391(c), 28 U.S.C.A. § 1391(c). The Court of Appeals affirmed on the same ground, saying that the company could not 'be said to be doing business in the state so as to be subject to suit there.' (197 F.2d 77.) It reached this conclusion because it thought the company's activities were not within 'the meaning of doing business' as 'discussed in the authorities' to which it referred, namely, International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and a number of other cases of this Court cited in footnote 2, 197 F.2d 74, 76. And in this Court the corporation argued specifically that '* * * the conclusion is inevitable that the courts below in holding that respondent was not transacting business in the State of Florida fairly followed the principles laid down in the International Shoe Co. case.' 2 Cf. von Jhering, In the Heaven of Legal Concepts, translated in Cohen and Cohen, Readings in Jurisprudence and Legal Philosophy, 678—689. 3 See on this point International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, Travelers Health Ass'n v. State of Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154; United States v. Scophony Corp. of America, 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091. 4 28 U.S.C. § 1404(a), 28 U.S.C.A. § 1404(a) provides: 'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.' A companion statute, 28 U.S.C. § 1406(a), 28 U.S.C.A. § 1406(a), provides: 'The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.' 5 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, provides that this Court in reversing judgments may direct the District Court to enter such orders as are 'just under the circumstances.'
89
345 U.S. 648 73 S.Ct. 914 97 L.Ed. 1319 LEVINSON et al.v.DEUPREE et al. No. 439. Argued Feb. 5 and 6, 1953. Decided June 1, 1953. Mr. Charles E. Lester, Jr., Newport, Ky., for petitioners. Mr. Robert S. Marx, Cincinnati, Ohio, for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Katherine Wing of New York was killed in a collision between two motorboats on the Ohio River within Campbell County, Kentucky, on June 19, 1948. On December 7, 1948, Deupree was appointed ancillary administrator of Katherine Wing's estate by the County Court of Kenton County, Kentucky, and on the same day he filed in the United States District Court for the Eastern District of Kentucky a libel seeking to recover damages for her death from petitioners Levinson and Hall, the owners and operators of the boats which had collided. The libel alleged Deupree's appointment as administrator. On March 3, 1949, petitioners answered with a general denial. On July 7, 1949, petitioners having moved for an order requiring the administrator to provide security for costs, Deupree filed an 'affidavit for leave to sue in forma pauperis.' This affidavit stated that 'decedent was possessed of no estate out of which costs or expenses herein can be paid or from which security therefor can be given.' On the same day petitioners filed a special demurrer putting in issue Deupree's capacity to sue, on the ground that the appointment of an administrator in a county where there is no estate is void. Jewel Tea Co. v. Walker's Administrator, 290 Ky. 328, 331, 161 S.W.2d 66, 68. Deupree thereupon obtained another appointment as ancillary administrator, this time from the County Court of Campbell County, wher the cause of action for wrongful death, itself an estate, had its locus. On July 29, 1949, Deupree filed a motion to amend his libel by alleging this new appointment. To the amended libel, petitioners, on September 9, 1949, entered a general demurrer. 2 The District Court sustained both the general and special demurrers. It held that the Kenton County appointment of Deupree as adminisrator was void and that the amended libel alleging the Campbell County appointment 'cannot relate back to the inception of the libel proceeding.' The claim as set out in the amended libel, the court held, was therefore barred by the Kentucky one-year statute of limitations, and the libel had to be dismissed. 3 The Court of Appeals agreed that under Kentucky law the Kenton County appointment was defective, although it held that the existence of a cause of action alone is sufficient, in Kentucky, to support the appointment of an administrator, and hence that the Campbell County appointment was valid. The court agreed also that under the Kentucky law the amended libel was barred. But, the Court of Appeals held, as to this matter, Kentucky law was not controlling. And it reversed and remanded for trial. 6 Cir., 186 F.2d 297. We denied a petition for certiorari to review this judgment, 341 U.S. 915, 71 S.Ct. 736, 95 L.Ed. 1351, but, after a decree had been awarded to the administrator and the Court of Appeals had affirmed, 6 Cir., 199 F.2d 760, we granted the present petition. 344 U.S. 903, 73 S.Ct. 284. Although the issue, embedded as it is in peculiarities of Kentucky law, is now seen to be a narrow one, it appeared to us at first that there was involved a broader and more important question of the binding force of local law in federal admiralty courts administering remedies created by that law. 4 The maritime law does not allow recovery for wrongful death. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Butler v. Boston & Savannah Steamship Co., 130 U.S. 527, 555, 9 S.Ct. 612, 618, 32 L.Ed. 1017. In 1920, Congress adopted a Lord Campbell's Act restricted to deaths on the high seas, 41 Stat. 537 et seq., 46 U.S.C. § 761 et seq., 46 U.S.C.A. § 761 et seq. In further alleviation of the maritime law, we have held that 'where death * * * results from a maritime tort committed on navigable waters within a state whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given.' Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210. Like the Garcia suit, the present libel was brought under a State wrongful death statute. Ky.Rev.Stat.1946, § 411.130. As we held in Garcia, a time limitation deemed attached to the right of action created by the State is binding in the federal forum. The Harrisburg, supra, 119 U.S. at page 214, 7 S.Ct. at page 147. Similarly, when the statute, as it does in this case, vests the right of action in 'the personal representative of the decedent,' it is not for the forum provided by another jurisdiction to vest the right elsewhere; such a forum must look to the local law to determine the meaning of the phrase 'personal representative.' But the narrow question here is whether such a forum, accepting and enforcing the limited scope given to the right by the local law which created it, must also be bound by the dubious and perhaps conflicting intimations on elegantia juris to be found in local decisions, whether, that is, a federal court is imprisoned by procedural niceties relating to amendments of pleadings. 5 The United States District Court for the Eastern District of Kentucky heard this suit sitting in admiralty. Its jurisdiction did not derive from diversity of citizenship; indeed there was no such diversity. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, is irrelevant. The court in this case was not 'in effect, only another court of the State,' Guaranty Trust Co. of New York v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079. The reasons why the court heard the suit and why it deemed itself controlled by the Kentucky statute of limitations and by the Kentucky definition of 'personal representative' are quite different. The District Court adopted and enforced the obligatio created by the State of Kentucky not because it sits in Kentucky and responds to the desirability of uniformity in the administration of justice within that State. In the absence of congressional action, the court adopted and enforced the obligatio created by Kentucky as it would one originating in any foreign jurisdiction. La Bourgogne, 210 U.S. 95, 138, 28 S.Ct. 664, 679, 52 L.Ed. 973; The Hamilton, 207 U.S. 398, 405, 28 S.Ct. 133, 134, 52 L.Ed. 264. And it was bound to enforce it as it found it, but not bound beyond that to strive for uniformity of results in procedural niceties with the courts of the jurisdiction which originated the obligatio. Even in diversity cases, when 'a right is enforceable in a federal as well as in a State court,' and the federal court sits as 'another court of the State,' we have recognized that 'the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic.' Guaranty Trust Co. of New York v. York, supra, 326 U.S. at page 108, 65 S.Ct. at page 1469. Whether, if this were a diversity case, we would consider that we are here dealing with 'forms and modes' or with matters more seriously affecting the enforcement of the right, it is clear that we are not dealing with an integral part of the right created by Kentucky. 6 We hold that federal practice controls the question whether the administrator, holding an effective appointment under Kentucky law, should be permitted to amend his libel so as to allege that appointment, at a time when the applicable statute of limitations would bar a new suit. And we hold that the administrator should be permitted to do so. Rule 23, Rules of Practice in Admiralty and Maritime Cases, 28 U.S.C.A.; cf. New York Central & H.R.R. Co. v. Kinney, 260 U.S. 340, 346, 43 S.Ct. 122, 123, 67 L.Ed. 294. 7 Affirmed.
910
346 U.S. 15 73 S.Ct. 956 97 L.Ed. 1427 DALEHITE et al.v.UNITED STATES. No. 308. Argued April 6, 7 and 8, 1953. Decided June 8, 1953. [Syllabus from pages 15-16 intentionally omitted] Messrs. John Lord O'Brian and Howard C. Westwood, Washington, D.C., for petitioners Dalehite and others. Mr. Austin Y. Bryan, Jr., Houston, Tex., for petitioners Pan-American Refining Corp. and others. Messrs. Morton Liftin and Oscar H. Davis, Washington, D.C., for respondent. Mr. Justice REED delivered the opinion of the Court. 1 Petitioners seek damages from the United States for the death of Henry G. Dalehite in explosions of fertilizer with an ammonium nitrate base, at Texas City, Texas, on April 16 and 17, 1947. This is a test case, representing some 300 separate personal and property claims in the aggregate amount of two hundred million dollars. Consolidated trial was had in the District Court for the Southern District of Texas on the facts and the crucial question of federal liability generally. This was done under an arrangement that the result would be accepted as to those matters in the other suits. Judgment was rendered following separate proof of damages for these individual plaintiffs in the sum of $75,000. Damages in the other claims remain to be determined. The Court of Appeals for the Fifth Circuit unanimously reversed, however, In re Texas City Disaster, Litigation, 197 F.2d 771, and we granted certiorari, Dalehite v. U.S., 344 U.S. 873, 73 S.Ct. 166, because the case presented an important problem of federal statutory interpretation. 2 The suits were filed under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671—2678, 2680, 28 U.S.C.A. §§ 1346, 2671—2678, 2680. That Act waived sovereign immunity from suit for certain specified torts of federal employees. It did not assure injured persons damages for all injuries caused by such employees. 3 The Act provides that the federal district courts, '(s)ubject to the provisions of (the act),' are to have: 4 'exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' § 1346(b). 5 There is an exception from the scope of this provision. Section 2680 reads: 6 'The provisions of this chapter and section 1346(b) of this title shall not apply to— 7 '(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.' 8 Suing under this grant of jurisdiction, the plaintiffs claimed negligence, substantially on the part of the entire body of federal officials and employees involved in a program of production of the material—Fertilizer Grade Ammonium Nitrate (FGAN hereafter)—in which the original fire occurred and which exploded. This fertilizer had been produced and distributed at the instance, according to the specifications and under the control of the United States. 9 The adaptability of the material for use in agriculture had been recognized long prior to 1947. The Government's interest in the matter began in 1943 when the TVA, acting under its statutory delegation to undertake experiments and 'manufacture' fertilizer, 48 Stat. 61, 16 U.S.C. § 831d, 16 U.S.C.A. § 831d first began production for commercial purposes.1 TVA used plaint facilities formerly used for production of ammonium nitrate for explosives. In the year 1943, the War Production Board, responsible for the production and allocation of war materials, Exec. Order 9024, January 16, 1942, 7 Fed.Reg. 329, U.S.Code Cong.Service, 1942, p. 49, instituted a program of yearly production of 30,000 tons a month of FGAN for private domestic agricultural use through plants no longer required for ammunition production. Administration was to be carried on through the Army's Bureau of Ordnance. The TVA specifications were followed and advice given by its experts. This early production for domestic use furnished a test for manufacture and utility of FGAN. 10 The particular FGAN involved at Texas City came to be produced for foreign use for these reasons: Following the World War II hostilities, the United States' obligations as an occupying power,2 and the danger of internal unrest, forced this Government to deal with the problem of feeding the populations of Germany, Japan and Korea. Direct shipment of foodstuffs was impractical; available fertilizer was in short supply, and requirements from the United States were estimated at about 800,000 tons. However, some 15 ordnance plants had been deactivated and turned over to the War Assets Administration, 44 CFR, Part 401, for disposal. Under-Secretary of War Royall suggested in May of 1946, and Secretary Patterson agreed, that these be used for production of fertilizer needed for export.3 The Director of the Office of War Mobilization and Reconversion, 58 Stat. 785, 50 U.S.C.App. § 1651 et seq. (1944 ed.) § 1651(c), 50 U.S.C.A.Appendix, § 1651 et seq., 1651(c), acting under the power delegated by the President in Exec.Order 9347, May 27, 1943, 8 Fed.Reg. 7207, U.S.Code Cong.Service, 1943, p. 5—48, and Exec.Order 9488, October 3, 1944, 9 Fed.Reg. 12145, 50 U.S.C.A.Appendix, § 1651 note, ordered the plants into operation. Cabinet approval followed. The War Department allocated funds from its appropriations for 'Supplies' and 'Military Posts' for 1946; direct appropriations for relief in the occupied areas were made by Congress in the following year.4 The Army's Chief of Ordnance was delegated the responsibility for carrying out the plan, and was authorized particularly to enter into cost-plus fixed fees contracts with private companies for the operation of the plants' facilities. , he in turn appointed the Field Director of Ammunition Plants (FDAP) to administer the program. Thereafter the Department entered into a number of contracts with private firms including the du Pont Co. and Hercules Powder Co.—to 'operate the installations * * * described herein for the graining of ammonium nitrate (fertilizer grade),' but subjecting 'the work to be done by the Contractor * * * to the general supervision, direction, control and approval of the Contracting Officer.' A detailed set of specifications was drawn up and sent to each plant which included 'FDAP Specifications for Products' and a similar TVA paper. Army personnel were appointed for each plant. These were responsible for the application of these specifications, liaison with supply officials, and satisfaction of production schedules, pursuant to an Army Standard Operating Procedure. , beyond this, operations were controlled by the administering corporation which supplied the personnel and production experience required.5 11 FGAN's basic ingredient was ammonium nitrate, long used as a component in explosives. Its adaptability as a fertilizer stemmed from its high free nitrogen content. Hercules Powder Company had first manufactured a fertilizer compound in this form on the basis of Cairns' Explosive Patent, No. 2,211,738, of August 13, 1940. The Cairns' process contemplates a product substantially identical to the Texas City FGAN. The process was licensed to the United States. The Government produced ammonium nitrate at certain other federal plants, and shipped it in solution to the reactivated graining centers for concentration. Thereafter, in addition to clay, a mixture of petrolatum, rosin and paraffin (PRP hereafter) was added to insure against caking through water absorption. The material was then grained to fertilizer specification, dried and packaged in 6-ply paper bags, marked 'Fertilizer Ammonium Nitrate.' 12 At the inception of the program, however, it appeared that these particular plants were unable to produce sufficient quantities of fertilizer to meet the early needs of the planned allocation. So early shipments to the occupied territories were made up of lots privately produced, and released to the War Department by the Combined Food Board and purchased by the United States, pursuant to an allocation arrangement approved by the Board acting through the Civilian Production Administration, established by Exec. Order 9638, October 4, 1945, 10 Fed.Reg. 12591, U.S.Code Cong.Service, 1945, p. 1318. Thereafter the private producers could replenish their supply for private sale by purchasing government-produced FGAN, if they so desired. 13 The particular FGAN transported to Texas City had been produced at three of the plants activated by the Government for the foreign fertilizer program, and allotted to the Lion Oil Co., which had previously sold FGAN to the Army pursuant to their sell-back agreement. The agreement provided that title was to pass to Lion on payment. The original contract of sale to the Army having provided that Lion could designate a recipient other than itself for the replacement FGAN, Lion contracted with the Walsen Company for resale. Walsen operated as broker for the French Supply Council representing the French Government which had secured a preferential fertilizer allocation from the Civilian Production Administration. Pursuant thereto Walsen transmitted the French shipping orders to Lion who turned them over to the Army for execution. The FGAN was consigned to the French Supply Council at Texas City by government bills of lading. The Council insured the shipment in its own name, arranged for credit with New York banks and assigned part thereof to Lion, sufficient to cover the shipments here involved, payable on presentation of shipping documents. It also directed Lion to 'consign all lots French Supply Council for storage and eventual exportation Texas City Terminal Texas.' 14 By April 15, 1947, following three weeks warehouse storage at Texas City on orders of the French Council, some 1,850 tons of the FGAN thus resold had been loaded on the French Government-owned steamship Grandcamp, and some 1,000 tons on the privately-owned High Flyer by independent stevedores hired by the French.6 The Grandcamp carried in addition a substantial cargo of explosives, and the High Flyer 2,000 tons of sulphur at the time. At about 8:15 a.m. of the next day smoke was sighted in the Grandcamp hold and all efforts to halt the fire were unavailing.7 Both ships exploded and much of the city was leveled and many people killed. 15 Since no individual acts of negligence could be shown, the suits for damages that resulted necessarily predicated government liability on the participation of the United States in the manufacture and the transportation of FGAN. Following the disaster of course, no one could fail to be impressed with the blunt fact that FGAN would explode. In sum petitioners charged that the Federal Government had brought liability on itself for the catastrophe by using a material in fertilizer which had been used as an ingredient of explosives for so long that industry knowledge gave notice that other combinations of ammounium nitrate with other material might explode. The negligence charged was that the United States, without definitive investigation of FGAN properties, shipped or permitted shipment to a congested area without warning of the possibility of explosion under certain conditions. The District Court accepted this theory. His judgment was based on a series of findings of causal negligence which, for our purposes, can be roughly divided into three kinds—those which held that the Government had been careless in drafting and adopting the fertilizer export plan as a whole, those which found specific negligence in various phases of the manufacturing process and those which emphasized official dereliction of duty in failing to police the shipboard loading. The Court of Appeals en banc unanimously reversed, but since only three of the six judges explicitly rejected the bulk of these findings, we shall consider the case as one in which they come to us unimpaired. Cf. National Labor Relations Board v. Pittsburgh Steamship Co., 340 U.S. 498, 503, 71 S.Ct. 453, 456, 95 L.Ed. 479; United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746. Even assuming their correctness arguendo, though, it is our judgment that they do not establish a case within the Act.8 This is for the reason that as a matter of law the facts found cannot give the District Court jurisdiction of the cause under the Tort Claims Act. 16 I. The Federal Tort Claims Act was passed by the Seventy-ninth Congress in 1946 as Title IV of the Legislative Reorganization Act, 60 Stat. 842, after nearly thirty years of congressional consideration. It was the offspring of a feeling that the Government should assume the obligation to pay damages for the misfeasance of employees in carrying out its work. And the private bill device was notoriously clumsy.9 Some simplified recovery procedure for the mass of claims was imperative. This Act was Congress' solution, affording instead easy and simple access to the federal courts for torts within its scope.10 17 The meaning of the governmental regulatory function exception from suits, § 1680(a) shows most clearly in the history of the Tort Claims Bill in the Seventy-seventh Congress. The Seventy-ninth, which passed the Act, held no hearings on the Act. Instead, it integrated the language of the Seventy-seventh Congress, which had first considered the exception, into the Legislative Reorganization Act as Title IV. 18 Earlier tort claims bills considered by Congress contained reservations from the abdication of sovereign immunity. Prior to 1942 these exceptions were couched in terms of specific spheres of federal activity, such as postal service, the activities of the Securities and Exchange Commission, or the collection of taxes.11 In 1942, however, the Seventy-seventh Congress drafted a two-fold elimination of claims based on the execution of a regulation or statute or on the exercise of a discretionary function. The language of the bills then introduced in both the House and Senate in fact, was identical with that of § 2680(a) as adopted.12 The exception was drafted as a clarifying amendment to the House bill to assure protection for the Government against tort liability for errors in administration or in the exercise of discretionary functions.13 An Assistant Attorney General, appearing before the Committee especially for that purpose,14 explained it as avoiding 'any possibility that the act may be construed to authorize damage suits against the Government growing out of a legally authorized activity,' merely because 'the same conduct by a private individual would be tortious.' It was not 'intended that the constitutionality of legislation, the legality of regulations, or the propriety of a discretionary administrative act should be tested through the medium of a damage suit for tort. The same holds true of other administrative action not of a regulatory nature, such as the expenditure of Federal Funds, the execution of a Federal project and the like.'15 Referring to a prior bill which had not contained the 'discretionary function' exemption, the House Committee on the Judiciary was advised that 'the cases embraced within (the new) subsection would have been exempted from (the prior) bill by judicial construction. It is not probable that the courts would extend a Tort Claims Act into the realm of the validity of legislation or discretionary administrative action, but H.R. 6463 makes this specific.'16 19 The legislative history indicates that while Congress desired to waive the Government's immunity from actions for injuries to person and property occasioned by the tortious conduct of its agents acting within their scope of business,17 it was not contemplated that the Government should be subject to liability arising from acts of a governmental nature or function.18 Section 2680(a) draws this distinction. Uppermost in the collective mind of Congress were the ordinary common-law torts.19 Of these, the example which is reiterated in the course of the repeated proposals for submitting the United States to tort liability, is 'negligence in the operation of vehicles.'20 On the other hand the Committee's reports explain the boundaries of the sovereign immunity waived, as defined by this § 2680 exception, with one paragraph which appears time and again after 1942, and in the House Report of the Congress that adopted in § 2680(a) the limitation in the language proposed for the 77th Congress.21 It was adopted by the Committee in almost the language of the Assistant Attorney General's explanation. This paragraph characterizes the general exemption as 'a highly important exception, intended to preclude any possibility that the bill might be construed to authorize suit for damages against the Government growing out of authorized activity, such as a flood control or irrigation project, where no negligence on the part of any government agent is shown, and the only ground for the suit is the contention that the same conduct by a private individual would be tortious. * * * The bill is not intended to authorize a suit for damages to test the validity of or provide a remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion.' 20 II. Turning to the interpretation of the Act, our reasoning as to its applicability to this disaster starts from the accepted jurisprudential principle that no action lies against the United States unless the legislature has authorized it.22 The language of the Act makes the United States liable 'respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances'. 28 U.S.C. § 2674, 28 U.S.C.A. § 2674. This statute is another example of the progressive relaxation by legislative enactments of the rigor of the immunity rule. Through such statutes that change the law, organized government expresses the social purposes that motivate its legislation. Of course, these modifications are entitled to a construction that will accomplish their aim,23 that is, one that will carry out the legislative purpose of allowing suits against the Government for negligence with due regard for the statutory exceptions to that policy. In interpreting the exceptions to the generality of the grant, courts include only those circumstances which are within the words and reason of the exception.24 They cannot do less since petitioners obtain their 'right to sue from Congress (and they) necessarily must take (that right) subject to such restrictions as have been imposed.' Federal Housing Administration v. Burr, 309 U.S. 242, 251, 60 S.Ct. 488, 493, 84 L.Ed. 724. 21 So, our decisions have interpreted the Acr to require clear relinquishment of sovereign immunity to give jurisdiction for tort actions.25 Where jurisdiction was clear, though, we have allowed recovery despite arguable procedural objections.26 22 One only need read § 2680 in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions. Negligence in administering the Alien Property Act, or establishing a quarantine, assault, libel, fiscal operations, etc., were barred. An analysis of § 2680(a), the exception with which we are concerned, emphasizes the congressional purpose to except the acts here charged as negligence from the authorization to sue.27 It will be noted from the form of the section, see 346 U.S. 18, 73 S.Ct. 959, supra, that there are two phrases describing the excepted acts of government employees. The first deals with acts or omissions of government employees, exercising due care in carrying out statutes or regulations whether valid or not. It bars tests by tort action of the legality of statutes and regulations. The second is applicable in this case. It excepts acts of discretion in the performance of governmental functions or duty 'whether or not the discretion involved be abused.' Not only agencies of government are covered but all employees exercising discretion.28 It is clear that the just-quoted clause as to abuse connotes both negligence and wrongful acts in the exercise of the discretion because the Act itself covers only 'negligent or wrongful act or omission of any employee', 'within the scope of his office' 'where the United States, if a private person, would be liable'. 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b). The exercise of discretion could not be abused without negligence or a wrongful act. The Committee reports, note 19, supra, show this. They say § 2680(a) is to preclude action for 'abuse of discretionary authority—whether or not negligence is alleged to have been involved.' They speak of excepting a 'remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion.'29 23 So we know that the draftsmen did not intend it to relieve the Government from liability for such common-law torts as an automobile collision caused by the negligence of an employee, see 346 U.S. 28, 73 S.Ct. 964, supra, of the administering agency. We know it was intended to cover more than the administration of a statute or regulation because it appears disjunctively in the second phrase of the section. The 'discretion' protected by the section is not that of the judge—a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law.30 24 This contention is met by petitioners with these arguments: 25 'To accept the foregoing close and narrow reasoning (of the Court of Appeals), which is unrealistic, is to say that a program and undertaking and operation, however like it may be to some private corporation or operation such as the manufacture of an explosive, is nevertheless throughout discretionary, if the concept thereof is born in discretion. * * * Petitioners assert that in the manufacturing * * * of FGAN, * * * the Government was not charged with any discretionary function or opportunity of discretion, but was charged with the duty of due and reasonable care. 26 'This Court has always applied the theory of discretionary function only to the executive and legislative levels, and has made such function the basis of freedom from interference by the courts a personal one to the particular executive or the legislative branch. Such discretionary function may not be delegated down to subordinates and to others.' 27 'The Government's argument, adopted by Judge Rives, is that the responsible Government employees were choosing between alternative courses of action in the steps they took. * * * The argument is that the alleged negligence was in the exercise of 'discretion' simply because it involved a choice. 28 'The negligence involved here was far removed from any Cabinet decision to provide aid to Germans and Japanese. * * * It is directed only to the mistakes of judgment and the careless oversight of Government employees who were carrying out a program of manufacturing and shipping fertilizer and who failed to concern themselves as a reasonable man should with the safety of others. * * * Congress delegated to Ordnance no 'discretion' thus to commit wrong.' 29 It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the 'discretionary function or duty' that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations.31 Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of § 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion.32 30 III. That the cabinet-level decision to institute the fertilizer export program was a discretionary act is not seriously disputed. Nor do we think that there is any doubt that the need for further experimentation with FGAN to determine the possibility of its explosion, under conditions likely to be encountered in shipping, and its combustibility was a matter to be determined by the discretion of those in charge of the production. Obviously, having manufactured and shipped the commodity FGAN for more than three years without even minor accidents, the need for further experimentation was a matter of discretion. Reported instances of heating or bag damage were investigated and experiments, to the extent deemed necessary, were carried on. In dealing with ammonium nitrate in any form, the industry, and of course Ordnance, was well aware that care must be taken. The best indication of the care necessary came from experience in FGAN production. The TVA had produced FGAN since 1943, and their experience, as we have indicated, 73 S.Ct. 960, 961, was not only available to Ordnance but was used by them to the most minute detail. It is, we think, just such matters of governmental duties that were excepted from the Act. 31 We turn, therefore, to the specific acts of negligence charged in the manufacture. Each was in accordance with, and done under, specifications and directions as to how the FGAN was produced at the plants. The basic 'Plan' was drafted by the office of the Field Director of Ammunitions Plants in June, 1946, prior to beginning production.33 It was drawn up in the light of prior experience by private enterprise and the TVA. In fact it was, as we have pointed out, based on the latter agency's engineering techniques, and specifically adopted the TVA process description and specifications.34 This Plan was distributed to the various plants at the inception of the program. 32 Besides its general condemnation of the manufacture of FGAN, the District Court cited four specific acts of negligence in manufacture.35 Each of these acts looked upon as negligence was directed by this Plan. Applicable excepts follow. Bagging temperature was fixed.36 The type of bagging37 and the labeling thereof38 were also established. The PRP coating, too, was included in the specifications.39 The acts found to have been negligence were thus performed under the direction of a plan developed at a high level under a direct delegation of plan-making authority from the apex of the Executive Department. The establishment of this Plan, delegated to the Field Director's Office, supra, 346 U.S. 20, 73 S.Ct. 960, clearly required the exercise of expert judgment. 33 This is to be seen, for instance, in the matter of the coating. The PRP was added in order to insure against water absorption. At stake was no mere matter of taste; ammonium nitrate when wet cakes and is difficult to spread on fields as a fertilizer. So the considerations that dictated the decisions were crucial ones, involving the feasibility of the program itself, balanced against present knowledge of the effect of such a coating and the general custom of similar private industries. 34 And, assuming that high bagging temperatures in fact obtained as the District Court found, the decision to bag at the temperature fixed was also within the exception. Maximum bagging temperatures were first established under the TVA specifications. That they were the product of an exercise of judgment, requiring consideration of a vast spectrum of factors, including some which touched directly the feasibility of the fertilizer export program, is clear. For instance, it appears several times in the record that the question of bagging temperatures was discussed by the Army plant officials, among others. In January, 1947, the Bureau of Explosives of the Association of American Railroads wrote to Ordnance concerning a box-car fire of FGAN. The letter suggested a reduction of bagging temperatures. The Field Director of Ammunition Plants consulted the commanding officers on the matter. Those of two of the plants which manufactured the Texas City FGAN replied that loading was effected at about 200 . Both, however, recommended that reduced temperatures would be inadvisable. It would be possible to keep the product in graining kettles for a longer period or to install cooling equipment. But both methods would result in greatly increased production costs and/or greatly reduced production. This kind of decision is not one which the courts, under the Act, are empowered to cite as 'negligence'; especially is this so in the light of the contemporary knowledge of the characteristics of FGAN.40 35 As well, serious judgment was involved in the specification of the bag labels and bills of lading. The importance of this rests on the fact that it is the latest point in time and geography when the Government did anything directly related to the fire, for after bagging the FGAN was of course physically in the hands of various non-governmental agents. So. since there was serious room for speculation that the most direct operative fact causing the immediate fire on the Grandcamp arose from errors that the French Council, longshoremen or ship staff committed, it was and is important for the petitioners to emphasize the seriousness of the alleged labeling mistake. 36 This, too, though, falls within the exception for acts of discretion. The Plan had been prepared in this regard by the Transportation Officer of the Director's Office. His decision in the matter was dictated by the ICC regulations. These did not provide for a specific classification for the material other than as fertilizer. Labeling it as anything but 'oxidizing material' was not required—indeed was probably forbidden—and even this requirement was waived for bags of less than 200 pounds. To the extent, then, that the Army had a choice in the matter, its decision not to seek to list its FGAN in any other fashion was within the exception. The immunity of a decision as to labeling, in fact, is quite clearly shown by the fact that the ICC's regulations, for instance, could not be attacked by claimants under the Act by virtue of the first phrase of § 2680(a). 37 In short, the alleged 'negligence' does not subject the Government to liability. The decisions held culpable were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government's fertilizer program. 38 'There must be knowledge of a danger, not merely possible, but probable', MacPherson v. Buick Motor Co., 217 N.Y. 382, 389, 111 N.E. 1050, 1053, L.R.A. 1916F, 696. Here, nothing so startling was adduced. The entirety of the evidence compels the view that FGAN was a material that former experience showed could be handled safely in the manner it was handled here. Even now no one has suggested that the ignition of FGAN was anything but a complex result of the interacting factors of mass, heat, pressure and composition. 39 IV. The findings of negligence on the part of the Coast Guard in failing to supervise the storage of the FGAN, and in fighting the fire after it started, were rejected by a majority of the Court of Appeals. 197 F.2d 777, 780, 781. We do not enter into an examination of these factual findings. We prefer, again, to rest our decision on the Act. 40 The District Court's holding that the Coast Guard and other agencies were negligent in failing to prevent the fire by regulating storage or loading of the fertilizer in some different fashion is like his specific citations of negligence discussed above. They are classically within the exception. 'The power to adopt regulations or by-laws * * * for the preservation of the public health, or to pass ordinances prescribing and regulating the duties of policemen and firemen * * * are generally regarded as discretionary, because, in their nature, they are legislative.' Weightman v. Corporation of Washington, 1 Black 39, 49, 17 L.Ed. 52. The courts have traditionally refused to question the judgments on which they are based. Zywicki v. Jos. R. Foard Co., D.C., 206 F. 975; Gutowski v. Mayor of Baltimore, 127 Md. 502, 96 A. 630; State of Maryland v. General Stevedoring Co., D.C., 213 F. 51. 41 As to the alleged failure in fighting the fire, we think this too without the Act. The Act did not create new causes of action where none existed before. 42 '* * * the liability assumed by the Government here is that created by 'all the circumstances,' not that which a few of the circumstances might create. We find no parallel liability before, and we think no new one has been created by, this Act. Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities.' Feres v. United States, 340 U.S. 135, 142, 71 S.Ct. 153, 157, 95 L.Ed. 152. 43 It did not change the normal rule that an alleged failure or carelessness of public firemen does not create private actionable rights. Our analysis of the question is determined by what was said in the Feres case. See 28 U.S.C. §§ 1346 and 2674, 28 U.S.C.A. §§ 1346, 2674. The Act, as was there stated, limited United States liability to 'the same manner and to the same extent as a private individual under like circumstances'. 28 U.S.C. § 2674, 28 U.S.C.A. § 2674. Here, as there, there is no analogous liability; in fact, if anything is doctrinally sanctified in the law of torts it is the immunity of communities and other public bodies for injuries due to fighting fire. This case, then, is much stronger than Feres. We pointed out only one state decision which denied government liability for injuries incident to service to one in the state militia. That cities, by maintaining fire-fighting organizations, assume no liability for personal injuries resulting from their lapses is much more securely entrenched. The Act, since it relates to claims to which there is no analogy in general tort law, did not adopt a different rule. See Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704, 163 A.L.R. 342. To impose liability for the alleged nonfeasance of the Coast Guard would be like holding the United States liable in tort for failure to impose a quarantine for, let us say, an outbreak of foot-and-mouth disease. 44 V. Though the findings of specific and general negligence do not support a judgment of government liability, there is yet to be disposed of some slight residue of theory of absolute liability without fault. This is reflected both in the District Court's finding that the FGAN constituted a nuisance, and in the contention of petitioner here. We agree with the six judges of the Court of Appeals, 197 F.2d 771, 776, 781, 786, that the Act does not extend to such situations, though of course well known in tort law generally. It is to be invoked only on a 'negligent or wrongful act or omission' of an employee. Absolute liability, of course, arises irrespective of how the tortfeasor conducts himself; it is imposed automatically when any damages are sustained as a result of the decision to engage in the dangerous activity. The degree of care used in performing the activity is irrelevant to the application of that doctrine. But the statute requires a negligent act. So it is our judgment that liability does not arise by virtue either of United States ownership of an 'inherently dangerous commodity' or property, or of engaging in an 'extra hazardous' activity. United States v. Hull, 1 Cir., 195 F.2d 64, 67. 45 Petitioners rely on the word 'wrongful' though as showing that something in addition to negligence is covered. This argument, as we have pointed out, does not override the fact that the Act does require some brand of misfeasance or nonfeasance, and so could not extend to liability without fault; in addition, the legislative history of the word indicates clearly that it was not added to the jurisdictional grant with any overtones of the absolute liability theory. Rather, Committee discussion indicates that it had a much narrower inspiration: 'trespasses' which might not be considered strictly negligent. Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 2690, 76th Cong., 3d Sess., 43—44. Had an absolute liability theory been intended to have been injected into the Act, much more suitable models could have been found, e.g., the Suits in Admiralty Act, 41 Stat. 525, 46 U.S.C. §§ 742—743, 46 U.S.C.A. §§ 742, 743, in regard to maintenance and cure. Street, Tort Liability of the State; the Federal Tort Claims Act and the Crown Proceedings Act, 47 Mich.L.Rev. 341, 350. 46 Affirmed. 47 Mr. Justice DOUGLAS and Mr. Justice CLARK took no part in the consideration or decision of this case. 48 Appendix. 49 The District Court's analysis of the specific aspects of the manufacture was foreshadowed by his theory of the foreseeability of the risk which he set out early in the findings. His first finding of fact contained these words: 'This record discloses blunders, mistakes, and acts of negligence, both of omission and commission, on the part of Defendant, its agents, servants, and employees, in deciding to begin the manufacture of this inherently dangerous Fertilizer.' It was his conclusion that, through early experiments, the United States had 'learned many facts, but did not pursue such investigation far enough to learn all the facts, * * *. What facts it did learn, however, were sufficient to give Defendant knowledge and to put Defendant on notice, and if not, then upon inquiry that would if pursued, have led to knowledge and notice that such Fertilizer which it decided to and began to manufacture was an inherently dangerous and hazardous material, a dangerous explosive, and a fire hazard. Such facts learned by Defendant pointed to and showed that such Fertilizer should not be manufactured, in that it was, under certain conditions and circumstances, most dangerous to everyone handling it in any way and to the public. Yet Defendant's servants, agents and employees, in whose hands Defendant had left the matter, negligently went forward in the manufacture, handling, distribution, shipping, etc. of such Fertilizer. * * * 50 'After the manufacture and/or the shipping, distribution, and handling of Fertilizer had begun, there were experiments, events and incidents of which Defendant knew, or of which Defendant could have known by the use of the diligence of a reasonably prudent person, showing such Fertilizer to be very dangerous, both from the standpoint of fire and explosion. With this knowledge, Defendant should have ceased the manufacture and sale of such Fertilizer, or should have taken steps to insure the safety of persons manufacturing and handling such Fertilizer and the public. * * *' 51 'Defendant in manufacturing such Fertilizer, and particularly the Fertilizer on the Grandcamp and High Flyer, did so by a Formula made and evolved by Defendant or under its direction. It used as a coating of such Fertilizer, a substance or substances which rendered same highly susceptible to fire or explosion. There were various types of coating, but the coating finally used made the Fertilizer a very dangerous explosive and fire hazard. More than any other one thing, I think this coating made this commodity one of the most dangerous of explosives, * * *.' 52 '* * * Such Fertilizer was by Defendant, or under its direction, placed or sacked in bags made from paper or other substances which were easily ignited by contact with fire or by spontaneous combustion or spontaneous ignition of the Fertilizer. Such bags also become torn and ragged in shipping and particles of the bags became mixed with the Fertilizer and rendered same more dangerous and more susceptible to fire and explosion.' 53 '* * * Such Fertilizer was placed and packed in bags at high degrees of temperature, which temperature rendered the Fertilizer more susceptible to fire and explosion. Such Fertilizer was so packed that it did not get cool, but continued at high temperature while being shipped. This was particularly true of the Fertilizer which exploded on the Steamships Grandcamp and High Flyer. Same was packed in sacks at a high degree of temperature, which temperature continued with only slight reduction, if any, when the Fertilizer was shipped across the nation to Texas City and there loaded onto such Steamships.' 54 'Defendant was negligent in the manner in which it marked and labelled such sacks of Fertilizer, including the Fertilizer on the Grandcamp and High Flyer, in that same was not labelled and marked as a dangerous explosive and fire hazard as required by the Rules and Regulations of the Interstate Commerce Commission. * * * 55 '* * * It was the duty of Defendant, well knowing as it did the dangerous nature and character of such Fertilizer which Defendant shipped or caused to be shipped to Texas City, to notify and advise all the carriers handling same, including the Steamships Grandcamp and High Flyer, and to notify and advise the City and State Officers at Texas City, of the dangerous nature and character of such Fertilizer, to the end that such carriers and their employees and such officers could, it possible, protect themselves and the public against the danger of fires from and explosions of such Fertilizer.' The District Court concluded: 56 'Clearly such Fertilizer ought never to have been manufactured. From the beginning on down, it was a dangerous commodity and a dangerous nuisance.' 57 Mr. Justice JACKSON, joined by Mr. Justice BLACK and Mr. Justice FRANKFURTER, dissenting. 58 All day, April 15, 1947, longshoremen loaded bags of ammounium nitrate fertilizer aboard the S.S. Grandcamp, docked at Texas City, Texas. Shortly after 8 a.m. next morning, when work resumed, smoke was seen coming from the No. 4 hold and it was discovered that fire had broken out in the fertilizer. The ship's master ordered the hatch covered and battened down and steam was introduced into the hold. Local fire-fighting apparatus soon arrived, but the combined efforts to extinguish the fire were unavailing. Less than an hour after smoke was first seen, 880 tons of fertilizer in the No. 4 hold exploded and, in turn, detonated the fertilizer stored in the No. 2 hold. Fire spread to the dock area of Texas City and to the S.S. High Flyer, berthed at an adjoining pier and carrying a cargo of sulphur and ammonium nitrate fertilizer. Further efforts to extinguish or even contain the fire failed and, about 11 p.m., tugs unsuccessfully attempted to tow the High Flyer out to sea. Shortly after one o'clock on the morning of April 17, the sulphur and fertilizer aboard the High Flyer exploded, demolishing both that ship and the S. S. Wilson B. Keene, lying alongside. More than 560 persons perished in this holocaust, and some 3,000 were injured. The entire dock area of a thriving port was leveled and property damage ran into millions of dollars. 59 This was a man-made disaster; it was in no sense an 'act of God.' The fertilizer had been manufactured in Government-owned plants at the Government's order and to its specifications. It was being shipped at its direction as part of its program of foreign aid. The disaster was caused by forces set in motion by the Government, completely controlled or controllable by it. Its causative factors were far beyond the knowledge or control of the victims; they were not only incapable of contributing to it, but could not even take shelter or flight from it. 60 Over 300 suits were brought against the United States under the Federal Tort Claims Act, alleging that its negligence was responsible for the disaster. After consolidating the suits, the District Court ordered the case of the present petitioners to be tried. The parties to all of the suits, in effect, agreed that the common issue of the Government's negligence should abide the outcome of this test litigation. The Court of Appeals for the Fifth Circuit reversed the trial court's judgment in favor of petitioners.1 Supporting that reversal, the Government here urges that (1) a private person would not be liable in these circumstances, and (2) even if a private person were liable, the Government is saved from liability by the statute's exception of discretionary acts.2 61 This is one of those cases that a judge is likely to leave by the same door through which he enters. As we have been told by a master of our craft, 'Some theory of liability, some philosophy of the end to be served by tightening or enlarging the circle of rights and remedies, is at the root of any decision in novel situations when analogies are equivocal and precedents are silent.'3 So, we begin by avowing a conception of the function of legal liability in cases such as this quite obviously at variance with the approach of the Court. 62 Congress has defined the tort liability of the Government as analogous to that of a private person. Traditionally, one function of civil liability for negligence is to supply a sanction to enforce the degree of care suitable to the conditions of contemporary society and appropriate to the circumstances of the case. The civil damage action, prosecuted and adjusted by private initiative, neither burdening our overworked criminal processes nor confined by the limits of criminal liability, is one of the law's most effective inducements to the watchfulness and prudence necessary to avoid calamity from hazardous operations in the midst of an unshielded populace. 63 Until recently, the influence of the Federal Government has been exerted in the field of tort law to tighten liability and liberalize remedies.4 Congress has even imposed criminal liability without regard to knowledge of danger or intent where potentially dangerous articles are introduced into interstate commerce.5 But, when the Government is brought into court as a tort defendant, the very proper zeal of its lawyers to win their case and the less commendable zeal of officials involved to conceal or minimize their carelessness militate against this trend. The Government, as a defendant, can exert an unctuous persuasiveness because it can clothe official carelessness with a public interest. Hence, one of the unanticipated consequences of the Tort Claims Act has been to throw the weight of government influence on the side of lax standards of care in the negligence cases which it defends. 64 It is our fear that the Court's adoption of the Government's view in this case may inaugurate an unfortunate trend toward relaxation of private as well as official responsibility in making, vending or transporting inherently dangerous products. For we are not considering here every-day commodities of commerce or products of nature but a complex compound not only proven by the event to be highly dangerous, but known from the beginning to lie somewhere within the range of the dangerous. Ammonium nitrate, as the Court points out, had been 'long used as a component in explosives.' This grade of it was manufactured under an explosives patent, in plants formerly used for the manufacture of ordnance, under general supervision of the Army's Chief of Ordnance, and under the local direction of the Army's Field Director of Ammunition Plants. Advice on detailed operations was sought from such experienced commercial producers of high explosives as the du Ponts and the Atlas and the Hercules powder concerns. There is not the slightest basis for any official belief that this was an innocuous product. 65 Because of reliance on the reservation of governmental immunity for acts of discretion, the Court avoids direct pronouncement on the duty owing by the Government under these circumstances but does sound overtones and undertones with which we disagree. We who would hold the Government liable here cannot avoid consideration of the basic criteria by which courts determine liability in the conditions of modern life. This is a day of synthetic living, when to an ever-increasing extent our population is dependent upon mass producers for its food and drink, its cures and complexions, its apparel and gadgets. These no longer are natural or simple products but complex ones whose composition and qualities are often secret. Such a dependent society must exact greater care than in more simple days and must require from manufacturers or producers increased integrity and caution as the only protection of its safety and well-being. Purchasers cannot try out drugs to determine whether they kill or cure. Consumers cannot test the youngster's cowboy suit or the wife's sweater to see if they are apt to burst into fatal flames. Carriers, by land or by sea, cannot experiment with the combustibility of goods in transit. Where experiment or research is necessary to determine the presence or the degree of danger, the product must not be tried out on the public, nor must the public be expected to possess the facilities or the technical knowledge to learn for itself of inherent but latent dangers. The claim that a hazard was not foreseen is not available to one who did not use foresight appropriate to his enterprise. 66 Forward-looking courts, slowly but steadily, have been adapting the law of negligence to these conditions.6 The law which by statute determines the Government's liability is that of the place where the negligent act or omission occurred.7 This fertilizer was manufactured in Iowa and Nebraska, thence shipped to Texas. Speculation as to where the negligence occurred is unnecessary, since each of these jurisdictions recognizes the general proposition that a manufacturer is liable for defects in his product which could have been avoided by the exercise of due care.8 Where there are no specific state decisions on the point, federal judges may turn to the general doctrines of accepted tort law, whence state judges derive their governing principles in novel cases. We believe that whatever the source to which we look for the law of this case, if the source is as modern as the case itself, it supports the exaction of a higher degree of care than possibly can be found to have been exercised here. 67 We believe it is the better view that whoever puts into circulation in commerce a product that is known or even suspected of being potentially inflammable or explosive is under an obligation to know his own product and to ascertain what forces he is turning loose. If, as often will be the case, a dangerous product is also a useful one, he is under a strict duty to follow each step of its distribution with warning of its dangers and with information and directions to keep those dangers at a minimum. 68 It is obvious that the Court's only choice is to hold the Government's liability to be nothing or to be very heavy, indeed. But the magnitude of the potential liability is due to the enormity of the disaster and the multitude of its victims. The size of the catastrophe does not excuse liability but, on its face, eloquently pleads that it could not have resulted from any prudently operated Government project, and that injury so sudden and sweeping should not lie where it has fallen. It should at least raise immediate doubts whether this is one of those 'discretionary' operations Congress sought to immunize from liability. With this statement of our general approach to the liability issue, we turn to its application to this case. 69 In order to show that even a private person would not be liable, the Government must show that the trial court's findings of fact are clearly erroneous.9 It points to what it claims are patent errors in the lengthy findings made upon a record of over 30,000 pages in 39 printed volumes and apparently urges upon us a rule of 'error in uno, error in omnibus.' We cannot agree that some or even many errors in a record such as this will impeach all of the findings. We conclude that each individual finding must stand or fall on the basis of the evidence to support it. The trial judge found that the explosions resulted from a fire in the fertilizer which had started by some process akin to spontaneous combustion, and that the Government was negligent in failing to anticipate and take precautions against such an occurrence. 70 The Government's attack on the purely factual determination by the trial judge seems to us utterly unconvincing. Reputable experts testified to their opinion that the fire could have been caused by spontaneous combustion. The Government's contention that it was probably caused by someone smoking about the hold brought forth sharp conflict in the testimony. There was no error in adopting one of two permissible inferences as to the fire's origin. And, in view of the absence of any warning that FGAN was inflammable or explosive, we would think smoking by longshoremen about the job would not be an abnormal phenomenon. 71 The evidence showed that this type of fertilizer had been manufactured for about four years at the time of the explosion in Texas City. Petitioner's experts testified to their belief that at least a segment of informed scientific opinion at the time regarded ammonium nitrate as potentially dangerous, especially when combined with carbonaceous material as it was in this fertilizer. One witness had been hired by the War Production Board to conduct tests into explosion and fire hazards of this product. The Board terminated these tests at an intermediate stage, against the recommendation of the laboratory and in the face of the suggestion that further research might point up suspected but unverified dangers. In addition, there was a considerable history over a period of years of unexplained fires and explosions involving such ammonium nitrate. The zeal and skill of government counsel to distinguish each of these fires on its facts appears to exceed that of some of the experts on whose testimony they rely. The Government endeavored to impeach the opinions of petitioner's experts, introduced experts of its own, and sought to show that private persons who manufactured similar fertilizer took no more precautions than did the Government. 72 In this situation, even the simplest government official could anticipate likelihood of close packing in large masses during sea shipment, with aggravation of any attendant dangers. Where the risk involved is an explosion of a cargo-carrying train or ship, perhaps in a congested rail yard or at a dock, the producer is not entitled as a matter of law to treat industry practice as a conclusive guide to due car. Otherwise, one free disaster would be permitted as to each new product before the sanction of civil liability was thrown on the side of high standards of safety. 73 It is unnecessary that each of the many findings of negligence by the trial judge survive the 'clearly erroneous' test of appellate review. Without passing on the rest of his findings, we find that those as to the duty of further inquiry and negligence in shipment and failure to warn are sufficient to support the judgment.10 We construe these latter findings not as meaning that each omission in the process of bagging, shipping, and failure to warn, if standing alone, would have imposed liability on the Government, but rather that due care is not consistent with this seriatim resolution of every conflict between safety and expediency in favor of the latter. This Court certainly would hold a private corporation liable in this situation, and the statute imposes the same liability upon the Government unless it can bring itself within the Act's exception, to which we now turn.11 74 The Government insists that each act or omission upon which the charge of negligence is predicated—the decisions as to discontinuing the investigation of hazards, bagging at high temperature, use of paperbagging material, absence of labeling and warning—involved a conscious weighing of expediency against caution and were therefore within the immunity for discretionary acts provided by the Tort Claims Act. It further argues, by way of showing that by such a construction the reservation would not completely swallow the waiver of immunity, that such discretionary decisions are to be distinguished from those made by a truck driver as to the speed at which he will travel so as to keep the latter within the realm of liability. 75 We do not predicate liability on any decision taken at 'Cabinet level' or on any other high-altitude thinking. Of course, it is not a tort for government to govern, and the decision to aid foreign agriculture by making and delivering fertilizer is no actionable wrong. Nor do we find any indication that in these deliberations that any decision was made to take a calculated risk of doing what was done, in the way it was done, on the chance that what did happen might not happen. Therefore, we are not deterred by fear that governmental liability in this case would make the discretion of executives and administrators timid and restrained. However, if decisions are being made at Cabinet levels as to the temperature of bagging explosive fertilizers, whether paper is suitable for bagging hot fertilizer, and how the bags should be labeled, perhaps an increased sense of caution and responsibility even at that height would be wholesome. The common sense of this matter is that a policy adopted in the exercise of an immune discretion was carried out carelessly by those in charge of detail. We cannot agree that all the way down the line there is immunity for every balancing of care against cost, of safety against production, of warning against silence. 76 On the ground that the statutory language is not clear, the Government seeks to support its view by resort to selections from an inconclusive legislative history. We refer in the margin to appropriate excerpts which, in spite of the Court's reliance on them, we believe support our conclusion in this case.12 77 The Government also relies on the body of law developed in the field of municipal liability for torts which deal with discretionary, as opposed to ministerial, acts. Whatever the substantiality of this dichotomy, the cases which have interpreted it are in hopeless confusion; some have used 'discretionary' and 'ministerial' interchangeably with 'proprietary' and 'governmental,' while others have rather uncritically borrowed the same terminology from the law of mandamus.13 But even cases cited by the Government hold that, although the municipality may not be held for its decision to undertake a project, it is liable for negligent execution or up-keep.14 78 We think that the statutory language, the reliable legislative history, and the common-sense basis of the rule regarding municipalities, all point to a useful and proper distinction preserved by the statute other than that urged by the Government. When an official exerts governmental authority in a manner which legally binds one or many, he is acting in a way in which no private person could. Such activities do and are designed to affect, often deleteriously, the affairs of individuals, but courts have long recognized the public policy that such official shall be controlled solely by the statutory or administrative mandate and not by the added threat of private damage suits. For example, the Attorney General will not be liable for false arrest in circumstances where a private person performing the same act would be liable,15 and such cases could be multiplied.16 The official's act might inflict just as great an injury and might be just as wrong as that of the private person, but the official is not answerable. The exception clause of the Tort Claims Act protects the public treasury where the common law would protect the purse of the acting public official. 79 But many acts of government officials deal only with the housekeeping side of federal activities. The Government, as landowner, as manufacturer, as shipper, as warehouseman, as shipowner and operator, is carrying on activities indistinguishable from those performed by private persons. In this area, there is no good reason to stretch the legislative text to immunize the Government or its officers from responsibility for their acts, if done without appropriate care for the safety of others. Many official decisions even in this area may involve a nice balancing of various considerations, but this is the same kind of balancing which citizens do at their peril and we think it is not within the exception of the statute. 80 The Government's negligence here was not in policy decisions of a regulatory or governmental nature, but involved actions akin to those of a private manufacturer, contractor, or shipper. Reading the discretionary exception as we do, in a way both workable and faithful to legislative intent, we would hold that the Government was liable under these circumstances. Surely a statute so long debated was meant to embrace more than traffic accidents. If not, the ancient and discredited doctrine that 'The King can do no wrong' has not been uprooted; it has merely been amended to read, 'The King can do only little wrongs.' 1 The Hercules Powder Company held the original Cairns' Explosive Patent on the FGAN process, which contemplated a product substantially similar to that finally produced by the Government including the use of an organic insulater. See 73 S.Ct. 960, infra. 2 The Hague Conventions of 1899 (II), 32 Stat. 1803, and 1907 (IV), 36 Stat. 2277, Respecting the Laws and Customs of War on Land, Article 43. 3 These were capable of producing 70,000 tons a month. 4 Military Appropriation Act of 1946, 59 Stat. 384, 390, 395 (1945), and Military Appropriation Act of 1947, 60 Stat. 541, 560 (1946). The latter was mentioned as directed toward the fertilizer program. Hearings before a Subcommittee of the Senate Committee on Appropriations on H.R. 6837, 79th Cong., 2d Sess. 16, 85. See also H.J.Res. 153, 61 Stat. 125, May 31, 1947, specifically appropriating moneys for relief assistance of all kinds. 5 By 1946, at least two companies in addition to Hercules were producing FGAN commercially. 6 Seventy-five thousand tons of FGAN had been shipped through Texas City during the previous six months. 7 The Grandcamp exploded about an hour after the fire was noticed. Meanwhile the captain of the ship had ordered all personnel off and the hatches closed. Steam was introduced into the holds. All admit that this is normal fire-fighting procedure aboard ships, but that it was less than effective in this case because of the oxidizing properties of the FGAN. Whether or not the captain was negligent this Court is not called upon to say. 8 We are therefore not required to weigh each finding anew as 'clearly erroneous.' They were characterized below as 'profuse, prolific, and sweeping.' We agree. Fed.Rules Civ.Proc., Rule 52(a), 28 U.S.C.A., in terms, contemplates a system of findings which are 'of fact' and which are 'concise.' The will-recognized difficulty of distinguishing between law and fact clearly does not absolve district courts of their duty in hard and complex cases to make a studied effort toward definiteness. Statements conclusory in nature are to be eschewed in favor of statements of the preliminary and basic facts on which the District Court relied. Kelley v. Everglades Drainage District, 319 U.S. 415, 63 S.Ct. 1141, 87 L.Ed. 1485, and cases cited. Otherwise, their findings are useless for appellate purposes. In this particular case, no proper review could be exercised by taking the 'fact' findings of 'negligence' at face value. And, to the extent that they are of law, or course they are not binding on appeal. E.g., Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Co., 340 U.S. 147, 153—154, and concurring opinion at 155—156, 71 S.Ct. 127, 130 131, 132, 95 L.Ed. 162. 9 'In the Sixty-eighth Congress about 2,200 private claim bills were introduced, of which 250 became law. * * * 'In the Seventieth Congress 2,268 private claim bills were introduced, asking more than $100,000,000. Of these, 336 were enacted, appropriating about $2,830,000, of which 144, in the amount of $562,000, were for tort. 'In each of the Seventy-fourth and Seventy-fifth Congresses, over 2,300 private claim bills were introduced, seeking more than $100,000,000. In the Seventy-sixth Congress approximately 2,000 bills were introduced, of which 315 were approved for a total of $826,000. 'In the Seventy-seventh Congress, of the 1,829 private claim bills introduced and referred to the Claims Committee, 593 were approved for a total of $1,000,253.30. In the Seventy-eighth Congress 1,644 bills were introduced; 549 of these were approved for a total of $1,355,767.12.' H.R.Rep.No.1287, 79th Cong., 1st Sess., p. 2. 10 Certain tentative experiments in this direction should be noted. In 1855, Congress established the Court of Claims and consented to suit therein on claims based on contract or federal law or regulation. This consent was enlarged in 1887 to include all cases for damages not sounding in tort. At the same time United States District Courts were given concurrent jurisdiction of claims up to $10,000. In 1910, Congress consented to suits in the Court of Claims for patent infringement. When the Government took over the operation of the railroads during the First World War, Congress made the United States subject to the same responsibility for property damage, personal injury, and death as the private owners would have been. In 1920 and 1925, the Government consented to suits in the district courts upon admiralty and maritime torts involving government vessels, without limitation as to amount. From the Committee hearings we learn that the previous 85 years had 'witnessed a steady encroachment upon the originally unbroken domain of sovereign immunity from legal process for the delicts of its agents. Yet a large and highly important area remained in which no satisfactory remedy had been provided for the wrongs of government officers or employes, the ordinary 'common law' type of tort, such as personal injury or property damage caused by the negligent operation of an automobile.' Hearings before House Committee of Judiciary, 77th Cong., 2d Sess., on H.R.5373 and H.R.6463, p. 24. 11 Such specific exceptions appeared first as an amendment to H.R. 9285, 70th Cong., 1st Sess. The amendment was offered from the floor of the House, 69 Cong.Rec. 3131. See also H.R. 7236 and S. 2690, 76th Cong., 1st Sess.; H.R. 5373, 77th Cong., 2d Sess. 12 H.R. 6463, 77th Cong., 2d Sess.; S. 2207, 77th Cong., 2d Sess. The first broad governmental exemption was considered in S. 4567, 72d Cong., 1st Sess., and in S. 1833, 73d Cong., 1st Sess., where it was provided that the Government should not be liable for '(a)ny claim on account of the effect or alleged effect of an Act of Congress, Executive order of the President, or of any department or independent establishment.' 13 Hearings on H.R. 5373 and H.R. 6403, 77th Cong., 2d Sess., pp. 1, 4. 14 Hearings before the House Committee on the Judiciary, 77th Cong., 2d Sess., on H.R. 5373 and H.R. 6463, p. 6. 15 Ibid., pp. 25, 33. 16 Statement by the then Assistant Attorney General Francis M. Shea at Hearings before the Committee on the Judiciary, H. of Rep., 77th Cong., 2d Sess., on H.R. 5373 and H.R. 6463, p. 29. 17 Hearings before a Subcommittee of the House Committee on Claims, 72d Cong., 1st Sess., on a general tort bill, p. 17; Hearings on H.R. 7236, 76th Cong., 3d Sess., pp. 5, 16; Hearings on S. 2690, 76th Cong., 3d Sess., p. 27; Hearings on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess., pp. 28, 37, 39, 66. H.R.Rep.No. 2428, 76th Cong., 3d Sess., p. 3; H.R.Rep.No. 2245, 77th Cong., 2d Sess., p. 10; H.R.Rep.No. 1287, 79th Cong., 2d Sess., p. 5; S.Rep.No. 1400, 79th Cong., 2d Sess., p. 31. 18 H.R.Rep.No. 2800, 71st Cong., 1st Sess., p. 13; Hearings on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess., pp. 28, 33, 38, 45, 65—66; S.Rep.No. 1196, 77th Cong., 2d Sess., p. 7; H.R.Rep.No. 1287, 79th Cong., 2d Sess., p. 5. 86 Cong.Rec. 12021—12022. 19 That congressional thought was centered on granting relief for the run-of-the-mine accidents, as distinguished from injury from performing discretionary governmental functions, is indicated by the message of President Franklin D. Roosevelt in 1942 to the 77th Congress recommending passage of a tort claims statute. The President favored a $7,500 limit on jurisdiction and spoke chiefly of the interference from numerous bills introduced around two thousand each Congress—and the simplification of procedure for recovery. 88 Cong.Rec. 313—314. 20 H.R.Rep.No. 2428, 76th Cong., 1st Sess., p. 5; Hearings on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess., p. 66; Hearings on H.R. 7236, 76th Cong., 3d Sess., pp. 7, 16, 17; Hearings on S. 2690, 76th Cong., 3d Sess., p. 9. 69 Cong.Rec. 2192, 2193, 3118; 86 Cong.Rec. 12024. See also note 8. 21 See H.R.Rep.No. 2245, 77th Cong., 2d Sess., p. 10; S.Rep.No. 1196, 77th Cong., 2d Sess., p. 7; H.R.Rep.No. 1287, 79th Cong., 1st Sess., pp. 5—6; Hearings before H.Com. on Judiciary on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess., p. 33. The paragraph reads as follows: 'Section 402 specifies the claims which would not be covered by the bill. 'The first subsection of section 402 exempts from the bill claims based upon the performance or nonperformance of discretionary functions or duties on the part of a Federal agency or Government employee, whether or not the discretion involved be abused, and claims based upon the act or omission of a Government employee exercising due care in the execution of a statute or regulation, whether or not valid. This is a highly important exception, intended to preclude any possibility that the bill might be construed to authorize suit for damages against the Government growing out of an authorized activity, such as a flood-control or irrigation project, where no negligence on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid. It is also designed to preclude application of the bill to a claim against a regulatory agency, such as the Federal Trade Commission or the Securities and Exchange Commission, based upon an alleged abuse of discretionary authority by an officer or employee, whether or not negligence is alleged to have been involved. To take another example, claims based upon an allegedly negligent exercise by the Treasury Department of the blacklisting or freezing powers are also intended to be excepted. The bill is not intended to authorize a suit for damages to test the validity of or provide a remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion. Nor is it desirable or intended that the constitutionality of legislation, or the legality of a rule or regulation should be tested through the medium of a damage suit for tort. However, the common-law torts of employees of regulatory agencies would be included within the scope of the bill to the same extent as torts of nonregulatory agencies. Thus, section 402(5) and (10), exempting claims arising from the administration of the Trading With the Enemy Act or the fiscal operations of the Treasury, are not intended to exclude such common-law torts as an automobile collision caused by the negligence of an employee of the Treasury Department or other Federal agency administering those functions.' 22 Feres v. United States, 340 U.S. 135, 139, 71 S.Ct. 153, 156, 95 L.Ed. 152; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. Eckford, 6 Wall. 484, 18 L.Ed. 920. Cf. Blackstone, Book I, c. 7 (Sovereignty). 23 United States v. Yellow Cab Co., 340 U.S. 543, 555, 71 S.Ct. 399, 407, 95 L.Ed. 523; Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784. 24 United States v. Dickson, 15 Pet. 141, 165, 10 L.Ed. 689; Walling v. Jacksonville Paper Co., 317 U.S. 564, 571, 63 S.Ct. 332, 336, 87 L.Ed. 460; A. H. Phillips v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095. 25 In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, this Court held that the Act did not waive immunity for tort actions against the United States for injuries to three members of the Armed Forces while on active duty. The injuries were allegedly caused by negligence of employees of the United States. The existence of a uniform compensation system for injuries to those belonging to the armed services led us to conclude that Congress had not intended to depart from this system and allow recovery by a tort action dependent on state law. Recovery was permitted by a service man for nonservice disabilities in Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200. In United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3, we held that our courts did not have jurisdiction to try a tort action for injury by a federal employee to a complainant because of an accident at our air base in Newfoundland. This conclusion was reached because of the exception § 2680(k) of 'Any claim arising in a foreign country.' The sovereignty of the United States did not extend over the base. 26 United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, Insurance Company, as subrogee of the person injured, may bring suit under the Act in spite of Anti-Assignment Statute. United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523. United States may be sued for contribution, and also be impleaded as a third party defendant. 27 The statute is unique in Anglo-American jurisprudence in its explicit exception for discretion. The English Crown Proceedings Act, 1947, contains nothing directly comparable, though see § 11, saving the 'prerogative of the Crown,' 6 Halsbury's Statutes of England (2d ed.) 56. The extent of this provision is not entirely clear, but 6 Halsbury's Laws of England (2d ed.) 443—590, assumes the term to cover a wide area of official activities, including 'the rules and regulations (and) the exercise of discretionary authority' by 'the customary officers and department,' under parliamentary enactments. Ibid., 459—460. Street, Tort Liability of the State, 47 Mich.L.Rev. 341, 353, however, seems to indicate that the principal protection for the exercise of official discretion will come through the accepted principles of the common law as to torts of public officials acting within their delegated authority. See also Barnes, The Crown Proceedings Act, 1947, 26 Canadian Bar.J. 387, 390, and The Crown Proceedings Act, 1950, 28 New Zealand L.J. 49, 50, 52—53. Australia and New Zealand had had similar statutes for some years. They left 'open to grave doubt how far, if at all, it was intended by those Acts to give the subject rights of action which in result would interfere seriously with the ordinary administrative work of the Government. * * *' Enever v. The King, (1906) 3 Com.L.R. 969, 988; see also Davidson v. Walker, (1901) 1 N.S.W.St.R. 196, 208—213, and Hawley v. Steele, 6 Ch.D. 521 (quoted therein): "In other words, I think the discretion is vested in the executive Government, having authority over military matters, to determine for which, of these various military purposes for which land may be fairly be required, the particular land in question to be appropriated. It is not for the Judge to say that they have made a bad selection." (1901) 1 N.S.W.St.R. 211. 28 "Employee of the government' includes * * * members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity'. 28 U.S.C. § 2671, 28 U.S.C.A. § 2671. 29 Indeed, it has been so held by those district courts which have dismissed complaints charging negligence, following the Government's confession and avoidance plea that the acts alleged to be culpable fell within the exception. E.g., Boyce v. United States, D.C., 93 F.Supp. 866; Coates v. United States, 8 Cir., 181 F.2d 816; Denny v. United States, 5 Cir., 171 F.2d 365; Olson v. United States, D.C., 93 F.Supp. 150; Toledo v. United States, D.C., 95 F.Supp. 838; Thomas v. United States, D.C., 81 F.Supp. 881. 30 It seems sufficient to cite Marbury v. Madison, 1 Cranch 137, 170, 2 L.Ed. 60; Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780; Alzua v. Johnson, 231 U.S. 106, 34 S.Ct. 27, 58 L.Ed. 142; State of Louisiana v. McAdoo, 234 U.S. 627, 633, 34 S.Ct. 938, 940, 58 L.Ed. 1506; Perkins v. Lukens Steel Co., 310 U.S. 113, 131, 60 S.Ct. 869, 878, 84 L.Ed. 1108. 31 There are, of course, American state cases which are premised on a similar policy judgment, E. G. Barrett v. State of New York, 220 N.Y. 423, 116 N.E. 99, L.R.A.1918C, 400; Golstein v. State of New York, 281 N.Y. 396, 24 N.E.2d 97, 129 A.L.R. 905. Similarly in England the courts have been wary not to penalize discretionary acts of public bodies. One of the more interesting cases in the field is East Suffolk Rivers Catchment Board v. Kent, (1941) A.C. 74, involving certain allegedly negligent activities by the Board in draining inundated lands of the private plaintiffs. Lord Romer stated that the Board, under its enabling act, merely had the power to drain; 'whether or not they should exercise that power was a matter entirely within their own discretion.' 'I know of no authority for the proposition that in selecting the time within which, the extent to which, and the method by which its statutory power is to be exercised (the Board) owes any duty whatsoever.' Ibid., at 97, 98. See also Shappard v. Glossop Corporation, (1921) 3 K.B. 132: '(the statute) leaves it to (the Corporation's) discretion whether they will light the district or any part of it, and how long the lamps shall be kept lit in any portion of the district which they elect to light.' See also Whiting v. Middlesex County Council, (1948) 1 K.B. 162. 32 The courts that have passed upon the application of § 2680(a) to suits under the Tort Claims Act have interpreted the exception of discretionary functions, generally, in conformity with our holding that negligence in policies or plans for authorized governmental activities cannot support damage suits. Plaintiff in Boyce v. United States, D.C., 93 F.Supp. 866, charged that he had suffered damage by virtue of certain governmentally-conducted blasting operations. The United States by way of affirmative defense, showed that the blasting had been conducted pursuant to detailed plans and specifications drawn by the Chief of Engineers who, in turn, had been specifically delegated 'discretion of the broadest character' to draft a plan for deepening the Mississippi River channel. The exception was applied. There have been several cases of like import dealing with the execution of waterway projects. In Coates v. United States, 8 Cir., 181 F.2d 816, damages were sought for injury to crops and land from action of the Government in negligently changing the course of the Missouri. It was held that no jurisdiction existed under the Act. The case was followed in North v. United States, D.C., 94 F.Supp. 824. There the plaintiff was denied recovery for injury to his cellar and cess pool occasioned by a Government dam having raised the level of the local ground water. A like result obtained in Lauterback v. United States, D.C., 95 F.Supp. 479, where claimant sued to recover damages resulting from release of flood waters at Bonneville Dam. Olson v. United States, D.C., 93 F.Supp. 150, involved another claim of water damage. In that case, employees of the Fish and Wildlife Service were alleged to have 'wilfully and intentionally opened the gates' of a certain dam, causing loss of plaintiff's livestock. The dam was operated for 'the purpose of storing water for the propagating of fish and wildlife' and the court held that 'When flood waters are to be released and how much water is to be released certainly calls for the exercise of judgment'. 93 F.Supp. at pages 152—153. Sickman v. United States, 7 Cir., 184 F.2d 616, also invoked § 2680(a). There plaintiff unsuccessfully sought recovery for crop depradations by wild birds induced to feed on his land by a nearby governmental game preserve. In Toledo v. United States, D.C., 95 F.Supp. 838, plaintiff's automobile had been damaged by a partially rotten tree falling perchance at a time when he had parked under it. The tree had been planted and grown at a government plant experimental station in Puerto Rico. It was open to the public for instruction and and observation. The opinion holds that the operation of the station itself, and the decision to plant and preserve this particular tree to further its experimental purposes, was 'peculiarly within the discretion of the appropriate employees of the Station', but that negligent removal would not have been. 95 F.Supp. at page 841. 33 This Plan 'contains a tabulation of the installations involved together with pertinent information on those installations for use both in this part and in connection with Part 400; rates of production; description of production processes; information on inspection and acceptance; and information on shipping and storage. This part does not include requirements for the production facilities, recommendations for the operation of these facilities, and problems and methods involved in their administration, which are covered in succeeding parts.' 34 'The provisions of this chapter and section 1346(b) of this title shall not apply to * * *. Any claim arising from the activities of the Tennessee Valley Authority.' 28 U.S.C. § 2680(l), 28 U.S.C.A. § 2680(l). 35 See Appendix, 73 S.Ct. 973, this opinion. 36 'Water shall be turned off and discharging of kettle commenced when temperature reaches 200 F.' The relevance of the bagging temperature apparently stemmed from certain testimony that large masses of FGAN, if maintained at temperatures of around 300 F. might spontaneously ignite under certain conditions of mass and confinement. The Government proffered extensive evidence, however, that the FGAN shipped to Texas City did not leave the plants at nearly that temperature, and of course there is no evidence as to the the temperature at which it was loaded on the ships. 37 'Packaging.—Ammonium nitrate for fertilizer shall be packed 100 1bs. per bag. Moisture proof paper or burlap bags, as described below, shall be used. (Specifications as to size may have to be altered to meet the manufacturer's requirement).' Then follow detailed specifications. 38 Marking: Fertilizer (Ammonium Nitrate) 32.5% Nitrogen. Notice of contents appeared on the bill of lading, so far as important, as follows: 1,000 Bags, Fertilizing Compounds (manufactured fertilizer) NOIBN, dry in paper bags. 39 'The PRP mixture is composed of one part Paraffin, three parts rosin, and one part petrolatum, thoroughly mixed and melted. This provides a coating which repels moisture and holds the clay in place around each granule.' 40 Captain Hirsch, commanding one of the three plants which manufactured the Texas City FGAN, wrote to the Field Director's Office requesting 'that your office stipulate a maximum temperature at which the fertilizer may be loaded in order to eliminate' bag deterioration through heat. In reply, the Office stated that it 'has had discussions concerning a loading temperature lower than 200 F. for ammonium nitrate fertilizer, but it is felt that this is a matter of process control and not properly an item to be incorporated into specifications.' Hirsch interpreted this as meaning that 'this facility should not take any active interest in the condition that the ammonium nitrate fertilizer reaches its destination.' In reply from the Field Director's Office, this was labeled a distortion of our statement concerning the bagging temperature as a matter of process control into indifference to any aspect of acceptability or suitability.' The specifications were left unchanged as to bags or bagging temperatures. 1 In re Texas City Disaster Litigation, 5 Cir., 197 F.2d 771. 2 28 U.S.C. § 2680, 28 U.S.C.A. § 2680. 3 Cardozo, The Growth of the Law, p. 102. (Emphasis his own.) 4 See, e.g., the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq., which abolished the defense of assumption of risk and changed contributory negligence from a complete bar to recovery to a factor which mitigated damages; the Jones Act, 46 U.S.C. § 688 et seq., 46 U.S.C.A. § 688 et seq., which gave a cause of action against their employers to seamen, under the substantive rules of the F.E.L.A.; the Federal Employees Compensation Act of 1916, 5 U.S.C. § 751 et seq., 5 U.S.C.A. § 751 et seq., in which the Government set up a compensation system for its own employees; the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq., which sets up a system of workmen's compensation for the described employees and imposes liability without fault on their employers. In cases arising under the last-named Act, the Government is a party to judicial review of any award, representing the interests of the claimant. See O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483. 5 Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367. 6 Judge Lummus, for the Supreme Judicial Court of Massachusetts, articulated this development in Carter v. Yardley Co., Ltd., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559. That opinion contains what is perhaps a more decisive statement of the trend than does the earlier landmark opinion of Judge Cardozo for the New York Court of Appeals, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696. The following cases represent examples of the type of claims based on damage from complex manufactured products which come before appellate tribunals in the present day. Coleman Co. v. Gray, 10 Cir., 192 F.2d 265 (absence of safety device on gasoline vapor pressing iron); Roettig v. Westinghouse Electric & Mfg. Co., D.C., 53 F.Supp. 588 (explosion of heating unit in electric stove); Escola v. Coca-Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d 436 (defect in Coca-Cola bottle); Gall v. Union Ice Co., 108 Cal.App.2d 303, 239 P.2d 48 (absence of warning label on drum of sulfuric acid which burst); Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847 (defective vaporizer which melted, causing fire which burned plaintiff); Ebers v. General Chemical Co., 310 Mich. 261, 17 N.W.2d 176 (damage from chemical designed to kill peach-tree borers); Willey v. Fyrogas Co., Mo.Sup., 251 S.W.2d 635 (defeat in automatic cutoff valves on gas heater); Di Vello v. Gardner Machine Co., Ohio Com.Pl., 102 N.E.2d 289 (disintegrating grinding wheel); Saena v. Zenith Optical Co., W.Va., 65 S.E.2d 205 (exploding gas coffee maker). Recovery was not had in all of these cases, but all of them have emphasized that the manufacturer owes some duty of care to certain classes of people who might be injured by defects in his product. 7 28 U.S.C. § 1346, 28 U.S.C.A. § 1346. 8 McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442; Texas Drug Co. v. Caldwell, Tex.Civ.App., 237 S.W. 968, writ dismissed; Tegler v. Farmers Union Gas & Oil Co., 124 Neb. 336, 246 N.W. 721. As recently as 1949, Circuit Judge Duffy, in discussing Iowa law which was applicable in a diversity suit in federal court, said that the Supreme Court of Iowa had not yet passed squarely on the question, but was of the opinion that they would follow the weight of authority. Anderson v. Linton, 7 Cir., 178 F.2d 304. An older Iowa case imposes a duty of care on dealers in potentially dangerous substances, at least as to those in contractual privity. Ellis v. Republic Oil Co., 133 Iowa 11, 110 N.W. 20; and even the Government here does not rely on the absence of contractual privity to bar petitioners from recovery. 9 Rule 52(a), Fed.Rules Civ.Proc. 10 The following are excerpts from the findings of the trial judge: '(g) * * * (Defendant) learned many facts, but did not pursue such investigation far enough to learn all the facts, but negligently stopped short of learning all of the facts. What facts it did learn, however, were sufficient to give Defendant knowledge and to put Defendant on notice, and if not, then upon inquiry that would if pursued, have led to knowledge and notice that such fertilizer which it decided to and began to manufacture was an inherently dangerous and hazardous material, a dangerous explosive, and a fire hazard. * * * (1) Defendant was negligent in the manner in which it prepared such Fertilizer, including the Fertilizer on the Grandcamp and High Flyer, for shipment. Such Fertilizer was by Defendant, or under it (sic) direction, placed or sacked in bags made from paper or other substances which were easily ignited by contact with fire or by spontaneous combustion or spontaneous ignition of the Fertilizer. Such bags also became torn and ragged in shipping and particles of the bags became mixed with the Fertilizer and rendered same more dangerous and more susceptible to fire and explosion. Such negligence was the proximate cause of such fires and explosions and the injuries of which Plaintiffs complain. * * * (o) Defendant was negligent in delivering or causing to be delivered such Fertilizer, including the Fertilizer on the Grandcamp and High Flyer, so placed in paper bags to the railroad and other carriers over which it was shipped, without informing such carriers that it was dangerous, inflammatory, and explosive in character, and that it was dangerous to persons handling same and to the public. Such negligence was the proximate cause of such fires and explosions and injuries of which Plaintiffs complain.' 11 28 U.S.C. § 2680, 28 U.S.C.A. § 2680: 'The provisions of this chapter and section 1346(b) of this title shall not apply to— '(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. * * *' 12 See n. 21, of the Court's opinion. We believe that this oft-repeated paragraph appearing in the House Reports shows quite plainly that what was meant is that type of discretion which government agencies exercise in regulating private individuals. The majority chooses instead to fix an amorphous, all-inclusive meaning to the word, and then to delimit the exception not by whether an act was discretionary but by who exercised the discretion. The statute itself contains not the vaguest intimation of such a test which leaves actionable only the misconduct of file clerks and truck drivers. 13 See Patterson, Ministerial and Discretionary Official Acts, 20 Mich.L.Rev. 848. 14 E.g., Keeley v. City of Portland, 100 Me. 260, 262, 61 A. 180, 183; Cumberland v. Turney, 177 Md. 297, 311, 9 A.2d 561, 567; Gallagher v. City of Tipton, 133 Mo.App. 557, 113 S.W.2d 674. 15 Gregoire v. Biddle, 2 Cir., 177 F.2d 579. 16 Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (Postmaster General); Wilkes v. Dinsman, 7 How. 89, 12 L.Ed. 618 (officer of Marine Corps); Otis v. Watkins, 9 Cranch 339, 3 L.Ed. 752 (Deputy Collector of Customs); Yaselli v. Goff, 2 Cir., 12 F.2d 396, 56 A.L.R. 1239, affirmed 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (Special Assistant to the Attorney General). The overwhelming weight of authority in the states is to the same effect. See 42 Am.Jur. § 257.
78
346 U.S. 1 73 S.Ct. 991 97 L.Ed. 1417 UNITED STATESv.NUGENT. UNITED STATES v. PACKER. Nos. 540, 573. Argued May 1 and 4, 1953. Decided June 8, 1953. For purposes of Selective Service Act subsection entitling claimant denied classification as conscientious objector by local draft board to further review by an appropriate appeal board and requiring appeal board to refer claim to Department of Justice for inquiry and 'hearing', quoted word would take its meaning from an analysis of precise function which Congress had imposed upon Justice Department by subsection. Selective Service Act of 1948, §§ 6(j), 12, 50 U.S.C.A.Appendix, §§ 456(j), 462. 1 Under Selective Service Act subsection entitling claimant denied classification as conscientious objector by local draft board to further review by an appropriate appeal board and requiring appeal board to refer claim to Department of Justice for inquiry and hearing, neither Department investigation nor its hearing is determinative, and it is not function of such auxiliary procedure to provide full scale trial for each appealing registrant; standards of procedure to which Department must adhere being simply standards which will enable it to discharge its duty to forward sound advice, as expeditiously as possible, to appeal board. Selective Service Act of 1948, § 6(j), 50 U.S.C.A.Appendix, § 456(j). 2 The Selective Service Act is a comprehensive statute designed to provide orderly, efficient and fair procedure for marshalling available manpower of country and to impose a common obligation of military service on all physically fit young men; and since it is calculated to function in times of peril, it is desirable that procedure be free from litigious interruption. Selective Service Act of 1948, § 6(j), 50 U.S.C.A.Appendix, § 456(j). 3 Selective Service Act is valid exercise of war power. Selective Service Act of 1948, § 6(j), 50 U.S.C.A.Appendix, § 456(j). 4 There is no violation of Fifth Amendment by Selective Service Act subsection entitling claimant denied classification as conscientious objector by local draft board to further review by an appropriate appeal board and requiring appeal board to refer claim to Department of Justice for inquiry and hearing, even though there is no requirement that registrant be permitted to see investigator's report or be informed of names of persons interviewed by investigators. Selective Service Act of 1948, § 6(j), 50 U.S.C.A.Appendix, § 456(j); U.S.C.A.Const. Amend. 5. 5 Mr. Robert W. Ginnane, Washington, D.C., for petitioner. 6 Mr. Hayden C. Covington, Brooklyn, N.Y., for respondents. 7 Mr. Chief Justice VINSON delivered the opinion of the Court. 8 Section 6(j) of the Selective Service Act1 provides exemption from military service—partial or full, depending upon the circumstances—for any person 'who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.' If the conscientious objector's claim for relief under this section is denied by his local draft board, he is entitled to further review by an 'appropriate appeal board.' All such appeals are referred to the Department of Justice for an 'appropriate inquiry' and a 'hearing.' The Department of Justice then makes a recommendation to the appeal board, which may or may not follow it in reviewing the local board's classification. 9 These two cases are concerned with the procedure, established by regulation and practice,2 which is followed when a conscientious objector's appeal is referred to the Department of Justice. The Department has regularly used the FBI to investigate each appealing registrant's background and reputation for sincerity. A hearing is then held before a designated 'hearing officer.' The registrant is allowed to appear in person, and, if he chooses, he may bring with him an advisor and witnesses to testify in his behalf.3 Upon request, he is entitled to be instructed 'as to the general nature and character' of any 'unfavorable' evidence developed by the Department's investigation.4 But he is not permitted to see the FBI report, nor is he informed of the names of persons interviewed by the investigators. 10 It is the Department's refusal to disclose the entire FBI reports which precipitates the issues now before us. The Court of Appeals for the Second Circuit has held that this procedure violates a registrant's rights under the Selective Service Act.5 We granted certiorari, 345 U.S. 915, 73 S.Ct. 728, because that determination seemed in conflict with the decisions of other Courts of Appeals6 and because it dealt with an important problem in the administration of the Selective Service Act. 11 Each of the respondents claims to be a conscientious objector entitled to total exemption from military service. Each has been convicted of wilfully refusing to submit to induction in the armed forces of the United States.7 At their trials, respondents challenged the validity of their selective service classifications, claiming that they were fixed without basis in fact8 and without adherence to the procedures prescribed by § 6(j) of the Act;9 each claimed that the Department of Justice's failure to show him the FBI reports rendered his classification illegal. The Court of Appeals, reversing each respondent's conviction, sustained the claims. 12 We think that the Court of Appeals erred. We think that the statutory scheme for review, within the selective service system, of exemptions claimed by conscientious objectors entitles them to no guarantee that the FBI reports must be produced for their inspection. We think the Department of Justice satisfies its duties under § 6(j) when it accords a fair opportunity to the registrant to speak his piece before an impartial hearing officer; when it permits him to produce all relevant evidence in his own behalf and at the same time supplies him with a fair re sume of any adverse evidence in the investigator's report.10 13 Respondents urge that this is not enough. The argument rides hard upon the word 'hearing' in § 6(j). It is suggested that the 'hearing' prescribed by Congress was purposely designed to allow the registrant to refute—item by item, if necessary—the matters discussed in the investigator's report.11 In sum, respondents assimilate the 'hearing' in § 6(j) to a trial and insist that it imports a right to confront every informant who may have rendered adverse comment to the FBI. 14 The statute does entitle the registrant to a 'hearing,' and of course no sham substitute will meet this requirement; but we do not think that the word 'hearing'—when put in the context of the whole scheme for review set forth in § 6(j)—comprehends the formal and litigious procedures which respondents' interpretation would attribute to it. Instead, the word takes its meaning in this instance from an analysis of the precise function which Congress has imposed upon the Department of Justice in § 6(j).12 15 The duty to classify—to grant or deny exemptions to conscientious objectors—rests upon the draft boards, local and appellate, and not upon the Department of Justice. The registrant must first look to his local board for the relief he claims; he must convince this body—composed of representatives of his own community—of the depth and sincerity of his convictions. He must fill out forms, calculated to put him to the test;13 he must supply any additional detailed information which may be necessary for a searching investigation of his claim; and, if he or his local board demands it, he may appear in person to explain his position to the persons charged with determining its validity.14 16 If the local board denies the claim, the responsibility for review, if sought, falls upon the appeal board. The Department of Justice takes no action which is decisive. Its duty is to advise, to render an auxiliary service to the appeal board in this difficult class of cases. Congress was under no compulsion to supply this auxiliary service—to provide for a more exhaustive processing of the conscientious objector's appeal. Registrants who claim exemption for some reason other than conscientious objection, and whose claims are denied, are entitled to no 'hearing' before the Department. Yet in this special class of cases, involving as it does difficult analyses of facts and individualized judgments, Congress directed that the assistance of the Department be made available whenever a registrant insists that his conscientious objection claim has been misjudged by his local board. Observes sympathetic to the problems of the conscientious objector have recognized that this provision in the statute improves the system of review by helping the appeal boards to reach a more informed judgment on the appealing registrant's claims,15 But it has long been recognized that neither the Department's 'appropriate investigation' nor its 'hearing' is the determinative investigation and the determinative hearing in each case. It has regularly been assumed that it is not the function of this auxiliary procedure to provide a full-scale trial for each appealing registrant. 17 Accordingly, the standards of procedure to which the Department must adhere are simply standards which will enable it to discharge its duty to forward sound advice, as expeditiously as possible, to the appeal board. Certainly, this is an important and delicate responsibility, but we do not think the statute requires the Department to entertain an all-out collateral attack at the hearing on the testimony obtained in its prehearing investigation. 18 Respondents urge that they have a right to such a procedure under the Fifth Amendment. We cannot agree. 19 The Selective Service Act is a comprehensive statute designed to provide an marshal the available manpower of the country, to impose a common obligation of military service on all physically fit young men. It is a valid exercise of the war power. It is calculated to function—it functions today—in times of peril. Even so, Congress took care to provide special treatment for those who could not reconcile participation in the defense effort with their religious beliefs—if those beliefs were a matter of sincere conviction. Profiting from the experiences of the First World War, Congress adopted a new and special procedure to secure the rights of conscience, which had been given express statutory recognition. 20 It is always difficult to devise procedures which will be adequate to do justice in cases where the sincerity of another's religious convictions is the ultimate factual issue. It is especially difficult when these procedures must be geared to meet the imperative needs of mobilization and national vigilance—when there is no time for 'litigious interruptions.' Falbo v. United States, 1949, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. Under the circumstances presented, we cannot hold that the statute, as we construe it, violates the Constitution.16 21 The judgments are reversed. 22 Reversed. 23 Mr. Justice JACKSON took no part in the consideration or decision of this case. 24 Mr. Justice FRANKFURTER, whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting. 25 That so strong a court and one so strong in literary endowment—Swan, Ch. J., Learned Hand and Frank, JJ.—should rely, as did the Court of Appeals in this case, 2 Cir., 200 F.2d 46, 49 50, on the opinion of a District Judge, impressively attests the persuasiveness of that opinion. Chief Judge Hincks has stated also for me the compelling reasons why the refusal to make available the FBI report on a registrant claiming exemption as a conscientious objector invalidates, on any fair construction of the requirements of the Selective Service Act, his classification as 1—A. 26 'It is true that on the precise point of law involved the (Selective Service) Act is not explicit: when it directs the board to refer the registrant's claim of conscientious objection 'for inquiry and hearing' by the Department (of Justice), it does not specify that the product both of the inquiry and of the hearing shall be made available to the board. But neither does the Act suggest any reason why the product of the hearing should go forward to the board, as it did here as a matter of course, and the product of the inquiry should be withheld. 27 'There are, however, other provisions in the Act from which I think one must imply a Congressional intent that the board should have access to the investigative report. The same section of the Act proceeds to provide that after inquiry a hearing shall be had of which the registrant shall be notified. The natural import of this provision is, I think, that the investigative report resulting from the inquiry shall be made a part of the record for consideration by all directly concerned with the classification. Under the contemplated procedure the registrant has already had an opportunity before the draft board to put everything desired into the record. That being so there would be no point to notify him to appear in the departmental hearing just to put in more evidence. Thus, by elimination, the only useful purpose of notice at that stage was to give the registrant opportunity to meet the contents of the report. * * * 28 'Congress was not using empty words when in Sec. 451 of the Act it solemnly declared 'that in a free society the obligations and privileges of serving in the armed forces and the reserve components thereof should be shared generally, in accordance with a system of selection which is fair and just, and which is consistent with the maintenance of an effective national economy.' A system in which selections might be made in uninformed reliance upon the recommendation of an executive officer bottomed perhaps on secret police reports, would indeed make a mockery of that high declaration of policy. Only if the Act be construed to require that the investigative reports shall become a part of the record open to the appeal board and all concerned is the 'system of selection * * * fair and just' within our Anglo-Saxon concepts of justice and due process.' (United States v. Geyer, D.C., 108 F.Supp. 70, 72—72. 29 There is a note of uneasiness in the Court's recognition of the difficulty of 'devising' procedures 'adequate to do justice in cases where the sincerity of another's religious convictions' is in issue. Courts are, no doubt, closely circumscribed in 'devising' such procedures where Congress has, with sufficient clarity, bound the allowable judicial discretion in applying legislation. And, of course, only within narrow limits may courts reject a procedure, devised by Congress, on constitutional grounds. The Due Process Clause cannot be bent to what a judge may privately think is wisdom in respecting dissident views. But here the Court ought not to feel an impotent uneasiness. It is not called upon to devise a just procedure; merely to apply one. Considering the traditionally high respect that dissent, and particularly religous dissent, has enjoyed in our view of a free society, this Court ought not to reject a construction of congressional language which assures justice in cases where the sincerity of another's religious conviction is at stake and where prison may be the alternative to an abandonment of conscience. The enemy is not yet so near the gate that we should allow respect for traditions of fairness, which has heretofore prevailed in this country, to be overborne by military exigencies. 30 The suggestion that the registrants in these cases have waived their rights by not asking for 'a fair resume ' of any adverse evidence in the investigator's report seems to me an instance of keeping the word of promise to the ear and breaking it to the hope. The very purpose of a hearing is to give registrants an opportunity to meet adverse evidence. It makes a mockery of that purpose to suggest that such adverse evidence can be effectively met if its provenance is unknown. Nor is it possible to be confident that a 'resume is fair' when one cannot know what it is a resume of. This does not suggest purposeful unfairness, still less, want of zeal. Language is treacherous and the meaning of what is written to no small degree derives from him who reads it. In a country with our moral and material strength the maintenance of fair procedures cannot handicap our security. Every adherence to our moral professions reinforces our strength and therefore our security. 31 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 32 I concur in Mr. Justice FRANKFURTER'S opinion and only add a word. The use of statements by informers who need not confront the person under investigation or accusation has such an infamous history that it should be rooted out from our procedure. A hearing at which these faceless people are allowed to present their whispered rumors and yet escape the test and torture of cross-examination is not a hearing in the Anglo-American sense. We should be done with the practice—whether the life of a man is at stake, or his reputation, or any matter touching upon his status or his rights. If FBI reports are disclosed in administrative or judicial proceedings, it may be that valuable underground sources will dry up. But that is not the choice. If the aim is to protect the underground of informers, the FBI report need not be used. If it is used, then fairness requires that the names of the accusers be disclosed. Without the identity of the informer the person investigated or accused stands helpless. The prejudices, the credibility, the passions, the perjury of the informer are never known. If they were exposed, the whole charge might without under the cross-examination. 1 Section 6(j) appeared in the 1940 Selective Service Act as § 5(g), 54 Stat. 885, 889. It was reenacted as § 6(j) of the Selective Service Act of 1948. 62 Stat. 604, 613, 50 U.S.C. § 456(j), 50 U.S.C.A.Appendix, § 456(j). The Act was amended in 1951, 65 Stat. 75, 86, 50 U.S.C.App. (Supp. V) § 456(j), 50 U.S.C.A.Appendix, § 456(j), the present language of § 6(j) differs in immaterial respects from the language in the earlier statutes. The full text of § 6(j) of the Selective Service Act of 1948 reads: '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. Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the armed forces under this title, be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, be deferred. Any person claiming exemption from combatant training and service because of such conscientious objections shall, if such claim is not sustained by the local board, be entitled to an appeal to the appropriate appeal board. Upon the filing of such appeal, the appeal board shall refer any such claim to the Department of Justice for inquiry and hearing. The Department of Justice, after appropriate inquiry, shall hold a hearing with respect to the character and good faith of the objections of the person concerned, and such person shall be notified of the time and place of such hearing. The Department of Justice shall, after such hearing, if the objections are found to be sustained, recommend to the appeal board that (1) if the objector is inducted into the armed forces under this title, he shall be assigned to noncombatant service as defined by the President, or (2) if the objector is found to be conscientiously opposed to participation in such noncombatant service, he shall be deferred. If after such hearing the Department of Justice finds that his objections are not sustained, it shall recommend to the appeal board that such objections be not sustained. The appeal board shall, in making its decision, give consideration to, but shall not be bound to follow, the recommendation of the Department of Justice together with the record on appeal from the local board. Each person whose claim for exemption from combatant training and service because of conscientious objections is sustained shall be listed by the local board on a register of conscientious objectors.' There is a dearth of legislative history reflecting much discussion in Congress about this phase of the Selective Service Act. The problem was discussed rather briefly during the Committee hearings on the 1940 Act. See Hearings Before the Committee on Military Affairs United States Senate on S. 4164, 76th Cong., 3d Sess., and Hearings Before the Committee on Military Affairs House of Representatives on H.R. 10132, 76th Cong., 3d Sess. Compare H.R.Rep.No. 2903, 76th Cong., 3d Sess., p. 5. 2 See 32 CFR Part 1626.25 (1949 ed.); see also 17 Fed.Reg. 5449, June 18, 1952. 3 See, Instructions to Registrants Whose Claims for Exemption as Conscientious Objectors Have Been Appealed (a letter sent to the appealing registrant from the office of the Attorney General) reproduced in part in the record in the Nugent case, at page 54. 4 Ibid. 5 United States v. Nugent, 200 F.2d 46, and United States v. Packer, 200 F.2d 540. 6 See e.g., Imboden v. United States, 6 Cir., 1952, 194 F.2d 508; Elder v. United States, 9 Cir., 1953, 202 F.2d 465. 7 50 U.S.C.App. (Supp. V) § 462, 50 U.S.C.A.Appendix, § 462. 8 Cox v. United States, 1947, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59. 9 Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. 10 As to what constitutes a 'fair resume ' see Imboden v. United States, supra. Compare United States v. Oller, D.C., 1952, 107 F.Supp. 54 and United States v. Bouziden, D.C.W.D.Okl.1952, 108 F.Supp. 395. We need not reach that question in these cases because in our view respondents cannot complain of any failure on the part of the Department of Justice to supply them with a summary of the evidence. Respondent Nugent first indicated to his local board that he would only serve as a noncombatant. Thereafter, when required to submit additional information, he stated that he was opposed to any military service whatsoever. The local board, after a hearing, classified him as 1—A—O which rendered him eligible only for noncombatant military service. He appealed, claiming total exemption. Pursuant to § 6(j) his case was referred to the Department of Justice. Instructions mailed to respondent Nugent informed him of his right to 'request' the Hearing Officer to 'advise' him of the 'general nature and character of any evidence' which was 'unfavorable' to him claim. Respondent never requested the Hearing Officer for any summary of the FBI investigation. He claims he was misled by the Hearing Officer's secretary who told him that the 'files' were 'favorable.' But respondent made no effort to verify this statement; at no time did he say anything or make any request to the Hearing Officer concerning the FBI report. Moreover, the Hearing Officer, in his own report on the case, said nothing which would indicate that the secretary's comment was erroneous. He did not purport to base his recommendation on material submitted by the FBI; rather his recommendation seems based upon Nugent's own conduct and testimony at the hearing coupled with the fact that respondent, in his original classification questionnaire, had indicated a willingness to serve as a noncombatant—the classification to which he had been assigned. An additional statement by a Special Assistant to the Attorney General, forwarding the Hearing Officer's report to the appeal board, also made no mention that there was adverse matter in the FBI report. No part of the FBI report was transmitted to the appeal board. Thus the record before the appeal board contained no evidence secured by the FBI. In view of this, and in view of his failure to make any request to the Hearing Officer, we think that Nugent was not denied any right. Nor was respondent Packer denied his right to be advised of the general nature of any evidence in the FBI report which might defeat his claim. In response to his question, the Hearing Officer told him that there was nothing unfavorable in it. The Hearing officer's report, which was transmitted to the appeal board, corroborates this view. Nothing in the FBI report was transmitted to the appeal board, and thus it was given no indication that the FBI report was unfavorable. 11 See United States v. Geyer, D.C.Conn.1952, 108 F.Supp. 70, an opinion heavily relied upon by the Court of Appeals in its opinion in the Nugent case. 12 Norwegian Nitrogen Products Co. v. United States, 1933, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796. 13 The Selective Service System requires conscientious objectors to fill out a special form. This form supplies the registrant with the opportunity to demonstrate—by pointing to past examples, referring to character witnesses and recounting the background of his training and beliefs—the sincerity of his claim. 14 32 CFR (1949 ed.) § 1624. 15 See Sibley and Jacob, Conscription of Conscience (1952), 71—76. 16 Cf. Norweigan Nitrogen Products Co. v. United States, supra; Williams v. New York, 1949, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337.
23
346 U.S. 61 73 S.Ct. 1017 97 L.Ed. 1454 AUTOMATIC CANTEEN CO. OF AMERICAv.FEDERAL TRADE COMMISSION. No. 89. Argued Dec. 12 and 15, 1952. Decided June 8, 1953. Mr. Edward F. Howrey, Washington, D.C., for petitioner. Mr. Robert B. Dawkins, Washington D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 The Robinson-Patman Act, 15 U.S.C.A. § 13 et seq., directed primarily against sellers who discriminate in favor of large buyers, includes a provision under which proceedings may be had against buyers who knowingly induce or receive discriminatory prices. That provision, § 2(f) of the Act, is here for construction for the first time as a result of a complaint issued by the Federal Trade Commission against petitioner, a large buyer of candy and other confectionary products for resale through 230,000-odd automatic vending machines operated in 33 States and the District of Columbia. Petitioner, incorporated in 1931, has enjoyed rapid growth and has attained, so we are told, a dominant position in the sale of confectionary products through vending machines. 2 The Commission introduced evidence that petitioner received, and in some instances solicited, prices it knew were as much as 33% Lower than prices quoted other purchasers, but the Commission has not attempted to show that the price differentials exceeded any cost savings that sellers may have enjoyed in sales to petitioner. Petitioner moved to dismiss the complaint on the ground that the Commission had not made a prima facie case. This motion was denied; the Commission stated that a prima facie case of violation had been established by proof that the buyer received lower prices on like goods than other buyers, 'well knowing that it was being favored over competing purchasers,' under circumstances where the requisite effect on competition had been shown. The question whether the price differentials made more than due allowance for cost differentials did not need to be decided 'at this stage of the proceeding.' On petitioner's failure to introduce evidence, the Commission made findings that petitioner knew the prices it induced were below list prices and that it induced them without inquiry of the seller, or assurance from the seller, as to cost differentials which might justify the price differentials. The Commission thereupon entered a cease and desist order. 46 F.T.C. 861. On review, the Court of Appeals affirmed,1 holding that the Commission's prima facie case under § 2(f) does not require showing absence of a cost justification. 194 F.2d 433. 3 Section 2(f) of the Robinson-Patman Act, roughly the counterpart, as to buyers, of sections of the Act dealing with discrimination by sellers, is a vital prohibition in the enforcement scheme of the Act. In situations where buyers may have difficulty in proving their sellers' costs, § 2(f) could, if the Commission's view in this case prevails, become a major reliance for simplified enforcement of the Act not only by the Commission but by plaintiffs suing for treble damages. Such enforcement, however, might readily extend beyond the prohibitions of the Act and, in doing so, help give rise to a price uniformity and rigidity in open conflict with the purposes of other antitrust legislation. We therefore thought it necessary to grant certiorari. 344 U.S. 809, 73 S.Ct. 16. 4 Enforcement of the Clayton Act's original declaration against price discrimination was so frustrated by inadequacies in the statutory language that Congress in 1936 enacted the sweeping amendments to that Act contained in what is known as the Robinson-Patman Act. 49 Stat. 1526, 15 U.S.C. § 13, 15 U.S.C.A. § 13. Chief among the inadequacies had been express exemption of price discrimination in the sales of different quantities of like goods, an exemption that was interpreted as leaving quantity-discount sellers free to grant discounts to quantity buyers that exceeded any cost savings in selling to such buyers. Goodyear Tire & Rubber Co. v. F.T.C., 6 Cir., 101 F.2d 620. In an effort to tighten the restriction against price discrimination inimical to the public interest, Congress enacted two provisions bearing on the issues in this case.2 It made price discrimination in the sale of like goods unlawful without regard to quantity, although quantity discounts, like other price differentials, could still be justified if they made 'no more than due allowance' for cost differences in sales to different buyers. Congress in addition sought to reach the large buyer, capable of exerting pressure on smaller sellers by making it unlawful 'knowingly to induce or receive a discrimination in price which is prohibited by this section.' 5 Since precision of expression is not an outstanding characteristic of the Robinson-Patman Act, exact formulation of the issue before us is necessary to avoid inadvertent pronouncement on statutory language in one context when the same language may require separate consideration in other settings. Familiar but loose language affords too ready a temptation for comprehensive but loose construction. We therefore think it imperative in this case to confine ourselves as much as possible to what is in dispute here. 6 We are here asked to settle a controversy involving simply the burden of coming forward with evidence under § 2(f) of the Act. The record, so abundant in its instances of individual transactions that the Commission itself felt bound to animadvert on undue proliferation of the evidence by Government lawyers,3 may be taken as presenting varying degrees of bargaining pressure exerted by a buyer on a seller to obtain prices below those quoted other purchasers. In some instances, so the Commission found, petitioner's method was to 'inform prospective suppliers of the prices and terms of sale which would be acceptable to (petitioner) without consideration or inquiry as to whether such supplier could justify such a price on a cost basis or whether it was being offered to other customers of the supplier.' 46 F.T.C., at 888. A typical instance of the maximum pressure found by the Commission was a series of negotiations in which representatives of petitioner sought to explain to a prospective supplier the kind of savings he might enjoy in sales to petitioner and might make the basis of a price differential. In such instances, petitioner sometimes gave the supplier estimates of what it considered 'representative' percentage savings on various costs such as freight, sales costs, packaging, and returns and allowances.4 7 The Commission made no finding negativing the existence of cost savings or stating that whatever cost savings there were did not at least equal price differentials petitioner may have received. It did not make any findings as to petitioner's knowledge of actual cost savings of particular sellers and found only, as to knowledge, that petitioner knew what the list prices to other buyers were. Petitioner, for its part, filed offers of proof that many sellers would testify that they had never told petitioner that the price differential exceeded cost savings. An offer of proof was in turn made by the Commission as to the testimony of these sellers on cross-examination; such proof would have brought out that petitioner never inquired of its suppliers whether the price differential was in excess of cost savings, never asked for a written statement or affidavit that the price differentials did not exceed such savings, and never inquired whether the seller had made up 'any exact cost figures' showing cost savings in serving petitioner. 8 Petitioner claims that the Commission has not, on this record, made a prima facie case of 'knowing inducement of prices that made more than due allowance for cost differences,' while the Commission contends that it has established a prima facie case, justifying entry of a cease and desist order where the buyer fails to introduce evidence. Before proceeding to an examination of the statutory provisions, it is desirable to consider the kind of evidence about which this dispute centers. Petitioner is saying in effect that under the Commission's view, the burden of introducing evidence as to the seller's cost savings and the buyer's knowledge thereof is put on the buyer; this burden, petitioner insists, is so difficult to meet that it would be unreasonable to construe the language Congress has used as imposing it. If so construed, the statute, petitioner contends, would create a presumption so lacking rational connection with the fact established as to violate due process. 9 We have been invited to consider in this connection some of the intricacies inherent in the attempt to show costs in a Robinson-Patman Act proceeding. The elusiveness of cost data, which apparently cannot be obtained from ordinary business records, is reflected in proceedings against sellers.5 Such proceedings make us aware of how difficult these problems are, but this record happily does not require us to examine cost problems in detail. It is sufficient to note that, whenever costs have been in issue, the Commission has not been content with accounting estimates; a study seems to be required, involving perhaps stop-watch studies of time spent by some personnel such as salesmen and truck drivers, numerical counts of invoices or bills and in some instances of the number of items or entries on such records, or other such quantitative measurement of the operation of a business.6 What kind of proof would be required of a buyer we do not know. The Commission argues that knowledge generally available to the buyer from published data or experience in the trade could be used by petitioner to make a reasonable showing of his sellers' costs. There was no suggestion in the Commission's opinion, however, that it would take a different attitude toward cost showings by a buyer than it has taken with respect to sellers, and 'general knowledge of the trade,' to use the Commission's phrase, unsupported by factual analysis has as yet been far from acceptable, and indeed has been strongly reproved by Commission accountants, as the basis for cost showings in other proceedings before the Commission.7 10 No doubt the burden placed on petitioner to show his sellers' costs, under present Commission standards, is heavy. Added to the considerable burden that a seller himself may have in demonstrating costs is the fact that the data not only are not in the buyer's hands but are ordinarily obtainable even by the seller only after detailed investigation of the business. A subpoena of the seller's records is not likely to be adequate. It is not a question of obtaining information in the seller's hands.8 It is a matter of studying the seller's business afresh. Insistence on proof of costs by the buyer might thus have other implications; it would almost inevitably require a degree of cooperation between buyer and seller, as against other buyers, that may offend other antitrust policies, and it might also expose the seller's cost secrets to the prejudice of arm's-length bargaining in the future. Finally, not one but, as here, approximately 80 different sellers' costs may be in issue. 11 It is against this background that the present dispute arises. The legislative setting indicates congressional recognition of the need to charge buyers with a responsibility for price discrimination comparable, so far as possible, to that placed on sellers. Thus, at the least, we can be confident in reading the words in § 2(f), 'a discrimination in price which is prohibited by this section', as a reference to the substantive prohibitions against discrimination by sellers defined elsewhere in the Act.9 It is therefore apparent that the discriminatory price that buyers are forbidden by § 2(f) to induce cannot include price differentials that are not forbidden to sellers in other sections of the Act, and, what is pertinent in this case, a buyer is not precluded from inducing a lower price based on cost differences that would provide the seller with a defense. This reading is, indeed, not seriously disputed by the parties. For we are not dealing simply with a 'discrimination in price';10 the 'discrimination in price' in § 2(f) must be one 'which is prohibited by this section.' Even if any price differential were to be comprehended within the term 'discrimination in price', § 2(f), which speaks of prohibited discriminations, cannot be read as declaring out of bounds price differentials within one or more of the 'defenses' available to sellers, such as that the price differentials reflect cost differences, fluctuating market conditions, or bona fide attempts to meet competition, as those defenses are set out in the provisos of §§ 2(a) and 2(b). 12 This is not to say, however, that the converse follows, for § 2(f) does not reach all cases of buyer receipt of a prohibited discrimination in prices. It limits itself to cases of knowing receipt of such prices. The Commission seems to argue, in part, that the substantive violation occurs if the buyer knows only that the prices are lower than those offered other buyers. Such a reading not only distorts the language but would leave the word 'knowingly' almost entirely without significance in § 2(f). A buyer with no knowledge whatsoever of facts indicating the possibility that price differences were not based on cost differences would be liable if in fact they were not. We have seen above that § 2(f) does not refer to all price differentials. But we do not think that price differentials, even as a matter of uncritical impression, come so often within the prohibited range of price discriminations that the language can in any way be read one way for some purposes and another in relation to the word 'knowingly.' 13 The Commission's attempts in this case to limit the word 'knowingly' to a more reasonable area of prohibition are not, we think, justified by the language Congress has used. The Commission argues that Congress was attempting to reach buyers who through their own activities obtain a special price and that 'knowingly to induce or receive' can be read as charging such buyers with responsibility for whatever unlawful prices result. But that argument would comprehend any buyer who engages in bargaining over price. If the Commission means buyers who exert undue pressure, the argument might find greater support in the legislative background but less in the language Congress has employed. Such a reading not only ignores the word 'receive' but opens up even more entangling difficulties with interpretation of what is undue pressure.11 14 The Commission also urges, from legislative explanation of similar language in § 2(a), that the word 'receive' can in some way be limited to a continued and systematic receipt of lower prices that could fairly charge the recipient with knowledge of illegality.12 While we need not decide whether systematic receipt of prices in itself could ever be sufficient to give the buyer the requisite knowledge,13 we think, as the argument itself recognizes, that the inquiry must be into the buyer's knowledge of the illegality. 15 Not only are the arguments of the Commission unsatisfying, but we think a fairer reading of the language and of what limited legislative elucidation we have points toward a reading of § 2(f) making it unlawful only to induce or receive prices known to be prohibited discriminations.14 For § 2(f) was explained in Congress as a provision under which a seller, by informing the buyer that a proposed discount was unlawful under the Act could discourage undue pressure from the buyer.15 Of course, such devices for private enforcement of the Act through fear of prosecution could equally well have been achieved by providing that the buyer would be liable if, through the seller or otherwise, he learned that the price he sought or received was lower than that accorded competitors, but we are unable, in the light of congressional policy as expressed in other antitrust legislation, to read this ambiguous language as putting the buyer at his peril whenever he engages in price bargaining. Such a reading must be rejected in view of the effect it might have on that sturdy bargaining between buyer and seller for which scope was presumably left in the areas of our economy not otherwise regulated.16 Although due consideration is to be accorded to administrative construction where alternative interpretation is fairly open, it is our duty to reconcile such interpretation, except where Congress has told us not to, with the broader antitrust policies that have been laid down by Congress. Even if the Commission has, by virtue of the Robinson-Patman Act, been given some authority to develop policies in conflict with those of the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note, in order to meet the special problems created by price discrimination, we cannot say that the Commission here has adequately made manifest reasons for engendering such a conflict so as to enable to accept its conclusion. Cf. Eastern-Central Motor Carriers Ass'n v. United States, 321 U.S. 194, 211—212, 64 S.Ct. 499, 507—508, 88 L.Ed. 668. 16 We therefore conclude that a buyer is not liable under § 2(f) if the lower prices he induces are either within one of the seller's defenses such as the cost justification or not known by him not to be within one of those defenses. This conclusion is of course only a necessary preliminary in this case. As we have noted earlier, the precise issue in the case before us is the burden of introducing evidence—a separate issue, though of course related to the substantive prohibition. This issue, involving as it does some of the same considerations, requires as further to consider a balance of convenience in the light of whatever evidentiary rules Congress has laid down for proceedings under the Act. Assuming, as we have found, that there is no substantive violation if the buyer did not know that the prices it induced or received were not cost-justified, we must in this case determine whether proof that the buyer knew that the price was lower is sufficient to shift the burden of introducing evidence to the buyer. 17 The Commission, in support of its position that it need only show the buyer's knowledge that the prices were lower, employs familiar interpretative tools without adequate regard to their immediate serviceability. It labels a seller's defense, such as the cost-justification, as an 'exception to the general prohibition' and from this argues that under conventional rules of evidence the Commission need come forward with evidence of violation only of the 'general prohibition.' This interpretation has foundation in the many commonsensical readings of comparable prohibitions so as to put the burden of showing a justification on the one who claims its benefits. We have said as much even in connection with that part of § 2(b) of the Robinson-Patman Act which attempts to lay down the rules of evidence under the Act.17 That section provides, 'Upon proof being made * * * that there has been discrimination on price * * * the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section'. The Commission points out that it was under this section that we held in the Morton Salt case that the burden of showing a cost-justification is on the seller in a § 2(a) proceeding, and argues that the same burden is on the buyer. It argues that the 'prima-facie case thus made' clearly refers back to 'proof (of) discrimination in price' and thus, from our decision in Morton Salt, that the prima facie case of a prohibited discrimination to which § 2(b) refers consists only of proof of a difference in prices in the sale of like goods having the requisite effect on competition. Saying that § 2(f) differs from § 2(a) 'only in containing the express requirement that the buyer shall have 'knowingly' induced or received such price discriminations,' the Commission asks us to hold that a prima facie case under § 2(f), is made out with a showing of the prima facie case of § 2(a) violation 'plus the additional element of having induced or received such discrimination with knowledge of the facts which made it violative of Section 2(a).' 18 We need not concern ourselves with the Commission's interpretation of the words 'prima-facie case thus made' in § 2(b) and the resulting conclusion that if § 2(a) and § 2(f) are to be read as counterparts, the elements necessary for a prima facie case under § 2(a) are sufficient for a prima facie showing of the 'discrimination in price which is prohibited by this section' in § 2(f). However that may be, the Commission recognizes that there is an 'additional element' resulting from the word 'knowingly' in § 2(f), and, of course, it is that element about which the controversy here centers and to which we must address ourselves. We may, however, note in passing that consistency between § 2(a) and § 2(f) both as to what constitutes the prohibited 'discrimination in price' and as to the elements of a prima facie showing of the prohibited 'discrimination in price' would not be disturbed by a holding against the Commission in this case, for we are concerned here with the prima facie showing of knowledge, admittedly an independent and separate requirement of § 2(f) above and beyond that of § 2(a). 19 The Commission argues that a prima facie case of knowledge is made out when it is shown that the buyer knew the facts making the price differential violative of § 2(a). At another point it urges that it must now show only 'that the buyer affirmatively contributed to obtaining the discriminatory prices by special solicitation, negotiation or other action taken by him.' However the argument is phrased, the Commission is, on this record, insisting that once knowledge of a price differential is shown,18 the burden of introducing evidence shifts to the buyer. The Commission's main reliance in this argument is § 2(b), which, as we have stated above, we interpreted in the Morton Salt case as putting the burden of coming forward with evidence of a cost justification on the seller, on the one, that is, who claimed the benefits of the justification. 20 To this it is answered that although § 2(b) does speak not of the seller but of the 'person charged with a violation of this section,' other language in § 2(b) and its proviso seems directed mainly to sellers,19 that the legislative chronology of the various provisions ultimately resulting in the Robinson-Patman Act indicates that § 2(b) was drafted with sellers in mind, and that the few cases so far decided have dealt only with sellers. 21 A confident answer cannot be given; some answer must be given. We think we must read the infelicitous language of § 2(b) as enacting what we take to be its purpose, that of making it clear that ordinary rules of evidence were to apply in Robinson-Patman Act proceedings.20 If § 2(b) is to apply to § 2(f) although we do not decide that it does because we reach the same result without it we think it must so be read. Considerations of fairness and convenience operative in other proceedings must, we think, have been controlling in the drafting of § 2(b), for it would require far clearer language than we have here to reach a contrary result. Cf. Addison v. Holy Hill Fruit Products, 322 U.S. 607, 617—618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488. If that is so, however, decisions striking the balance of convenience for Commission proceedings against sellers are beside the point.21 And we think the fact that the buyer does not have the required information, and for good reason should not be required to obtain it, has controlling importance in striking the balance in this case. This result most nearly accommodates this case to the reasons that have been given by judges and legislators for the rule of § 2(b), that is, that the burden of justifying a price differential ought to be on the one who 'has at his peculiar command the cost and other record data by which to justify such discriminations.'22 Where, as here, such considerations are inapplicable, we think we must disregard whatever contrary indications may be drawn from a merely literal reading of the language Congress has used. It would not give fair effect to § 2(b) to say that the burden of coming forward with evidence as to costs23 and the buyer's knowledge thereof shifts to the buyer as soon as it is shown that the buyer knew the prices differed. Certainly the Commission with its broad power of investigation and subpoena, prior to the filing of a complaint, is on a better footing to obtain this information than the buyer. Indeed, though it is of course not for us to enter the domain of the Commission's discretion in such matters, the Commission may in many instances find it not inconvenient to join the offending seller in the proceedings. 22 If the requirement of knowledge in § 2(f) has any significant function, it is to indicate that the buyer whom Congress in the main sought to reach was the one who, knowing full well that there was little likelihood of a defense for the seller, nevertheless proceeded to exert pressure for lower prices. Enforcement of the provisions of § 2(f) against such a buyer should not be difficult. Proof of a cost justification being what it is, too often no one can ascertain whether a price is cost-justified. But trade experience in a particular situation can afford a sufficient degree of knowledge to provide a basis for prosecution. By way of example a buyer who knows that he buys in the same quantities as his competitor and is served by the seller in the same manner or with the same amount of exertion as the other buyer can fairly be charged with notice that a substantial price differential cannot be justified. The Commission need only to show, to establish its prima facie case, that the buyer knew that the methods by which he was served and quantities in which he purchased were the same as in the case of his competitor. If the methods or quantities differ, the Commission must only show that such differences could not give rise to sufficient savings in the cost of manufacture, sale or delivery to justify the price differential, and that the buyer, knowing these were the only differences, should have known that they could not give rise to sufficient cost savings. The showing of knowledge, of course, will depend to some extent on the size of the discrepancy between cost differential and price differential, so that the two questions are not isolated. A showing that the cost differences are very small compared with the price differential and could not reasonably have been thought to justify the price difference should be sufficient. 23 What other circumstances can be shown to indicate knowledge on the buyer's part that the prices cannot be justified we need not now attempt to illustrate;24 but surely it will not be an undue administrative burden to explain why other proof may be sufficient to justify shifting the burden of introducing evidence that the buyer is or is not an unsuspecting recipient of prohibited discriminations. We think, in any event, it is for the Commission to spell out the need for imposition of such a harsh burden of introducing evidence as it appears to have sought in this case. Certainly we should have a more solid basis than an unexplained conclusion before we sanction a rule of evidence that contradicts antitrust policy and the ordinary requirements of fairness. While this Court ought scrupulously to abstain from requiring of the Commission particularization in its findings so exacting as to make this Court in effect a court of review on the facts, it is no less important, since we are charged with the duty of reviewing the correctness of the standards which the Commission applies and the essential fairness of the mode by which it reaches its conclusions, that the Commission do not shelter behind uncritical generalities or such looseness of expression as to make it essentially impossible for us to determine what really lay behind the conclusions which we are to review. Cf. United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 510—511, 55 S.Ct. 462, 467, 79 L.Ed. 1023. 24 Because of our view of the balance of convenience in these circumstances, we do not reach petitioner's claim that the Commission is in effect saying that knowledge of a difference in prices creates a presumption of knowledge that the price was unlawful, a presumption it claims would fall for lack of rational connection under Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. Cf. Note, E(dmund) M. M(organ), 56 Harv.L.Rev. 1324. It has seemed to us unnecessary in this case to speak of presumptions, and we need only call attention to the fact that in this case, as in the Tot case, we have dealt only with the burden of introducing evidence and not with the burden of persuasion, as to which different considerations may apply. 25 The judgment of the Court of Appeals, accordingly, is reversed as to the charges in Count II of the complaint (Count I is not before us), and the case is remanded to that court with instructions to remand it to the Federal Trade Commission for such further action as is open under this opinion. It is so ordered. 26 Reversed and remanded with instructions. 27 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice REED concur, dissenting. 28 This decision is a graphic illustration of the way in which a statute can read with enervating effect. 29 Section 2(b) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(b), 15 U.S.C.A. § 13(b), provides that where proof is made that there has been 'discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination * * *.' (Italics added.) 30 Section 2(f) makes it unlawful 'for any person' engaged in commerce 'knowingly to induce or receive a discrimination in price which is prohibited by this section.' (Italics added.) 31 The words 'the person charged' as used in § 2(b) and the words 'any person' used in § 2(f) plainly include buyers as well as sellers. 32 The nature of the discrimination condemned is made clear in § 2(a). It outlaws discrimination 'in price between different purchasers of commodities of like grade and quality' where the effect is substantially to prevent or lessen competition or tend to create a monopoly as respects any person 'who either grants or knowingly receives the benefit of such discrimination'. But it permits price differentials 'which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities' in which the commodities are sold or delivered. 33 In the present case, the Court determines that even though a 'buyer knew that the price was lower', such knowledge is insufficient to 'shift the burden of introducing evidence to the buyer.' But § 2(b) requires the person shown to practice a discrimination to establish a justification. Section 2(f) was intended to make clear that the same bans and burdens are on a knowing buyer obtaining discriminatory prices as we held in Federal Trade Commission v. A. E. Staley Mfg. Co., 324 U.S. 746, 759—760, 65 S.Ct. 971, 977, 89 L.Ed. 1338, approved in Standard Oil Co. v. Federal Trade Commission, 340 U.S. 231, 71 S.Ct. 240, 95 L.Ed. 239, are on a knowing seller who grants them. 34 The record shows persistent and continuous efforts of this large buyer in wheedling and coercing suppliers into granting it discriminatory prices. The Commission summarized petitioner's activities in far more sedate terms than their bizarre nature justified: 35 'Respondent used various methods to induce its suppliers to grant discriminatory prices. One of these was to inform prospective suppliers of the prices and terms of sale which would be acceptable to the respondent without consideration or inquiry as to whether such supplier could justify such a price on a cost basis or whether it was being offered to other customers of the supplier. At other times the respondent refused to buy unless the price to it was reduced below prices at which the particular supplier sold the same merchandise to others. In other instances respondent sought to explain to the prospective supplier that certain alleged savings would accrue to the supplier in selling to respondent or that certain elements of the supplier's cost could be eliminated, which would, in respondent's opinion, justify a lower price. In carrying out this form of inducement, respondent would advise a supplier or prospective supplier of the price which it considered 'standard price.' In letters written to the Curtiss Candy Company on November 15, 1939, and to W. F. Schrafft & Sons Corporation on February 15, 1937, respondent summarized alleged savings to these companies as follows: Curtiss Schrafft 36 " Alleged Savings Co. Corp. 37 (1) Freight savings of...... 6%. 5% to 7% 38 (2) Sales cost savings of... 7%. 7% 39 (3) 24-count cartons savings of. 5%. 5% 40 (4) Return and allowances savings of. 1%. 1% to 2% 41 (5) Free deals and samples 42 savings of 8%..... 2% to X% 43 (6) Shipping containers savings of. ..... 1% to 2% 44 Total deductions......... 27%. 21% to 25%• 45 'Respondent advised these companies that such alleged savings could be made because of the method by which respondent made purchases and because certain services could be eliminated in selling of it.' 46 There is no doubt that the large buyers wield clubs that give them powerful advantages over the small merchants. Often large merchants gain advantages over other sellers of the same merchandise by obtaining price concessions by pressure on their suppliers. The evil was acknowledged in Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 43, 68 S.Ct. 822, 826, 92 L.Ed. 1196. The Congress plainly endeavored to curb the buyer in the kind of activities disclosed by this record. As the House Report reveals, the line sought to be drawn was between those who incidentally receive discriminatory prices and those who actively solicit and negotiate them. H.R.Rep. No. 2951, 74th Cong., 2d Sess., pp. 5—6. 47 The Court disregards this history. The Court's construction not only requires the Commission to show that the price discriminations were not justified; it also makes the Commission prove what lay in the buyer's mind. I would let the acts of the buyer speak for themselves. Where, as here, the buyer undertakes to bludgeon sellers into prices that give him a competitive advantage, there is no unfairness in making him show that the privileges he demanded had cost justifications. This buyer over and again held itself out as a cost expert.* I would hold it to its professions. Since it was the coercive influence, there is no unfairness in making it go forward with evidence to rebut the Commission's prima facie case. 1 The Court also granted enforcement of the order on a cross petition by the Commission. The Commission concedes the impropriety of this action under our decision in Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, 72 S.Ct. 800, 96 L.Ed. 1081, rendered after the decision of the Court of Appeals in the case now before us. In view of this concession, we assume that the Court of Appeals, on the remand of this case, will, without further direction, reconsider its order for enforcement. 2 The two prohibitions are as follows: 'Sec. 2. (a) That it shall be unlawful for any person engaged in commerce, in the course of such commence, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered: * * *.' (The other provisos of § 2(a), not relevant here, concern the grant of authority to the Commission to establish quantity limits, recognition of the seller's right to select his customers under certain conditions, and exemption of price changes made in response to changing market conditions.) '(f) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.' 3 The Commission recognized the need, common in antitrust litigation, for care on the part of the prosecuting officers not to overburden the record. 'The record in this case does not disclose the reason for such a plethora of cumulative evidence as was adduced by Government counsel in the instant matter. Neither harassment of litigants nor the waste of Government funds in needless reiteration through cumulative evidence should be countenanced, nor does it seem that it was necessary to name 14 sellers as typical of a group from which respondents had induced or received discriminations in price, and certainly the records of not more than 5 of such sellers would have supplied ample evidence of such discriminations or price differentials.' In re Automatic Canteen Co. of America, 46 F.T.C. 861, 892. Failure to limit the evidence in some such way to typical transactions would create an especially heavy burden in a proceeding against a buyer under § 2(f) such as that here, where discriminatory sales were alleged to have been made by about 80 of the buyer's 115 suppliers. 4 Although the Commission recited such instances, it did not relate them to what the buyer should have known as to costs. It did not find from such instances that the circumstances should have provoked inquiry in the mind of a prudent business man. In short, we do not have a case in which the Commission in its informed judgment was led to conclude that in the circumstances knowing acceptance or inducement of a preference justified an inference of knowledge as to costs. 5 For a collection of relevant authorities and secondary material available on cost showings under the Act, see Note, 65 Harv.L.Rev. 1011. See also Fuchs, The Requirement of Exactness in the Justification of Price and Service Differentials under the Robinson-Patman Act, 30 Tex.L.Rev. 1; Haslett, Price Discriminations and their Justifications under the Robinson-Patmant Act of 1939, 46 Mich.L.Rev. 450, 472; Sawyer, Accounting and Statistical Proof in Price Discrimination Cases, 36 Iowa L.Rev. 244. For discussion of specific cost cases under the Act, see Aronson, Defendants under the Robinson-Patman Act, in Business and the Robinson-Patman Law (Werne ed.), 212, 227; Taggart, The Cost Principle in Minimum Price Regulation, 110, 8 Mich.Bus.Studies 151, 260 (1938); Warmack, Cost Accounting Problems under the Robinson-Patman Act, CCH Robinson-Patman Act Symposium (1947) 105; Comment, 35 Ill.L.Rev. 60. 6 Federal Trade Commission rulings in some cost cases 'demonstrate that expert testimony and other evidence extrinsic to an actual cost analysis will be given little weight by the Commission. The FTC apparently believes that such materials lack the objectivity and relevance of the approved method of analysis.' Note, 65 Harv.L.Rev. 1011, 1013—1014. 1014. See also Warmack, supra, note 5. Compare In re Minneapolis-Honeywell Regulator Co., 44 F.T.C. 351, 394, a case in which 'an extensive cost study' resulting from 'sincere and extensive efforts' was in part accepted. 7 See, e.g., Warmack, supra, note 5, at 107, 110. 8 Cf. Longman, Distribution Cost Analysis, 250, and articles cited supra, note 5. 9 See, e.g., 80 Cong.Rec. 6428, 9419; H.R.Rep.No. 2951, 74th Cong., 2d Sess. 8. 10 Were that the case, it might strictly be argued that the seller's 'defenses' are not relevant in a § 2(f) proceeding and that what is prohibited is the knowing inducement or receipt of a price lower than that accorded competing buyers. Such an interpretation has ambiguous legislative support. Congressman Utterback, in submitting the conference report to the House, stated, '* * * a discrimination is more than a mere difference. Underlying the meaning of the word is the idea that some relationship exists between the parties to the discrimination which entitles them to equal treatment, whereby the difference granted to one casts some burden or disadvantage upon the other.' 80 Cong.Rec. 9416. Plainly enough, under this statement, a discrimination in price may mean either a price differential in sales to two competitors, or a price differential in sales to two competitors which, because of an absence of cost or other justification, puts the unfavored competitor at a disadvantage. Compare Haslett, supra, note 5, at 453—466, with McAllister, Price Control by Law in the United States, 4 Law & Contemp.Prob. 273, 291. In any event, controversy over the meaning of the isolated phrase 'discrimination in price' is beside the point here. 11 Time and again there was recognition in Congress of a freedom to adopt and pass on to buyers the benefits of more economical processes, see, e.g., H.R.Rep.No. 2287, 74th Cong., 2d Sess. 10, 17; 80 Cong.Rec. 9415, 9417; buyer pressure to obtain the benefits of such savings could certainly not be undue pressure. Cf. Edwards, Maintaining Competition, 161. The Commission's findings do not suggest such a discrepancy in bargaining position between this buyer and his suppliers as to warrant characterizing the buyer as 'bludgeoning.' The Commission did find that those on whom the greatest 'pressure' was exerted were such not inconsiderable candy manufacturers as the Curtiss Candy Co. and W. F. Schrafft & Sons Corp. 12 See H.R.Rep.No. 2951, 74th Cong., 2d Sess. 5—6, explaining the language in § 2(a) quoted supra, note 2, 'or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination,' as follows: The purpose of the addition of the word 'knowingly' 'is to exempt from the meaning of the surrounding clause those who incidentally receive discriminatory prices in the routine course of business without special solicitation, negotiation, or other arrangement for them on the part of the buyer or seller, and who are therefore not justly chargeable with knowledge that they are receiving the benefit of such discrimination.' The context in which this explanation was given, as well as the precise language, so differs from § 2(f) that this interpretation does not present a contradiction between it and our reading of § 2(f). 13 See 346 U.S. 80, 81, 73 S.Ct. 1027, 1028, post. 14 We of course do not, in so reading § 2(f), purport to pass on the question whether a 'discrimination in price' includes the prohibitions in such other sections of the Act as §§ 2(d) and 2(e). 15 Congressman Utterback, in presenting the conference report to the House, spoke quite clearly in terms indicating that the provisions of § 2(f) contemplated only the buyer who knew that the price was not justified by costs. Section 2(f) 'makes it easier (for the manufacturer) to resist the demand for sacrificial price cuts coming from mass-buyer customers, since it enables him to charge them with knowledge of the illegality of the discount, and equal liability for it, by informing them that it is in excess of any differential which his difference in cost would justify as compared with his other customers.' 80 Cong.Rec. 9419. 16 Cf. Adelman, Effective Competition and the Antitrust Laws, 61 Harv.L.Rev. 1289, 1331; Edwards, Maintaining Competition, 161. 17 Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 44—45, 68 S.Ct. 822, 827, 92 L.Ed. 1196. Cf. S.Rep.No. 1502, 74th Cong., 2d Sess. 3. Section 2(b) in its entirety reads as follows: '(b) Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.' Throughout this opinion, a reference to § 2(b) is to the procedural language preceding the proviso; the language of the proviso, which we construed in Standard Oil Co. v. Federal Trade Comm., 340 U.S. 231, 71 S.Ct. 240, 245, 95 L.Ed. 239, is referred to only when we speak of the 'proviso of § 2(b)'. 18 In this connection, see supra, note 4, and post, note 24. 19 For example, the language of the proviso of § 2(b) concerning price differentials made to meet competition refers only to 'a seller'; further, the authority given the Commission under § 2(b) when justification is not shown is 'to issue an order terminating the discrimination', an order that could not usefully be directed to buyers. But cf. 80 Cong.Rec. 9418. 20 Congressman Patman, describing the § 2(b) rule as to the burden of proof, said: 'It means exactly the rule of law today. It is a restatement of existing law. So far as I am concerned you can strike it out. It makes no difference. It is the law of this land exactly as it is written there.' 80 Cong.Rec. 8231. 21 It does not aid understanding to suggest that § 2(f) has the same significance, as to a knowing buyer, as other sections of the Act have as to a knowing seller. A buyer knowing he is receiving a lower price cannot be said to be in the same position as a seller granting a lower price. The language of the statute bars such a construction. Even if the buyer has the 'same' burden as the seller, the fact that a seller has the burden to show his costs does not automatically, by virtue of § 2(f), become a buyer's burden to show the seller's cost. Nor has Federal Trade Commission v. A. E. Staley Mfg. Co., 324 U.S. 746, 759—760, 65 S.Ct. 971, 977, 89 L.Ed. 1338, and helpful relation to the problem of this case, if for no other reason than that that case did not call for a detailed consideration of the procedural portions of § 2(b). 22 80 Cong.Rec. 3599. Samuel H. Moss, Inc., v. Federal Trade Commission, 2 Cir., 148 F.2d 378, 379; 80 Cong.Rec. 8241. 23 Our view that § 2(b) permits consideration of conventional rules of fairness and convenience of course requires application of those rules to the particular evidence in question. Evidence, for example, that the seller's price was made to meet a competing seller's offer to a buyer charged under § 2(f) might be available to a buyer more readily even than to a seller. 24 We need not in this case consider the weight that can be attached to affirmative statements by the seller to the buyer that a price was or was not cost-justified, since there were no such statements in this case. See supra, 346 U.S. 67, 73 S.Ct. 1021. We need not now consider whether in an appropriate case the Commission may find it necessary to subject such statements to careful scrutiny. Thus, for instance, the Commission may consider that a seller stating that a price would be unlawful might in some situations be puffing rather than stating anything which a buyer can rely on or should be charged with. On the other hand, the Commission may in some circumstances wish to refuse to accept a buyer's claim that he relied on an affidavit or other assurance from the seller that price differentials were cost-justified; the furnishing of such an assurance might, together with other circumstances, indicate a sufficient absence of arm's-length bargaining to raise serious doubts as to the weight the assurance should be given in support of a buyer's claim. * A reading of the record leaves no doubt that petitioner knew in numerous instances that it was squeezing a price from the seller which was less than the seller's costs.
78
346 U.S. 128 73 S.Ct. 986 97 L.Ed. 1500 NEW YORK, N.H. & HARTFORD R. CO.v.NOTHNAGLE et al. No. 525. Argued April 29, 1953. Decided June 8, 1953. Mr. T. J. O'Sullivan, New Haven, Conn., for petitioner. Mr. John A. Danaher, Washington, D.C., for respondents. Mr. Justice CLARK delivered the opinion of the Court. 1 This case concerns the extent of an interstate carrier's liability for a passenger's baggage loss. On October 5, 1949, Mrs. Nothnagle, respondent here, purchased a railway ticket from petitioner in Meriden, Connecticut, for a journey to Fall River, Massachusetts, via New Haven, Connecticut. She boarded a train in Meriden at 11:19 a.m. and later arrived shortly after 11:30 a.m. in New Haven where she alighted for transfer to another train. On the station platform here suitcase was solicited by a redcap employee of petitioner, and she handed it to him with orders to return it at the Fall River train departing at 12:40 p.m. No baggage check was given; no money was paid. The suitcase vanished, and respondent sued. At trial in the Meriden City Court the parties stipulated that the baggage and contents actually worth $615 were lost due to petitioner's negligence. Petitioner insisted, however, that its liability as an interstate carrier was governed by a tariff schedule filed with the Interstate Commerce Commission which limited a recovery for baggage loss to $25 unless the passenger had in writing declared a higher valuation. 2 The state courts granted full recovery to respondent. The trial court found that although respondent had not declared a greater value, she had neither actual knowledge of petitioner's asserted restriction nor was notified of its existence by a legend on a baggage receipt or posted signs. In any event, the court concluded, petitioner had accepted the baggage only 'for safe-keeping and not for transportation,' so that the parties' rights were determinable by Connecticut principles of bailments rather than any rule of federal law.1 The Connecticut Supreme Court of Errors affirmed, viewing respondent's journey from Meriden to Fall River as not 'continuous,' and 'suspended for a substantial time in New Haven' to be resumed only when she boarded the Fall River train.2 Accordingly, that court deemed the case governed by Connecticut law under which petitioner was held liable for $615.3 Petitioner claims that this decision impairs federal rights secured by the Interstate Commerce Act, and we granted certiorari to examine the scope of that statutory protection. 345 U.S. 903, 73 S.Ct. 645. 3 We have little doubt that the transaction was incident to an interstate journey within the ambit of the Interstate Commerce Act. Neither continuity of interstate movement nor isolated segments of the trip can be decisive. 'The actual facts govern. For this purpose, the destination intended by the passenger when he begins his journey and known to the carrier, determines the character of the commerce.' Sprout v. City of South Bend, 1928, 277 U.S. 163, 168, 48 S.Ct. 502, 503, 72 L.Ed. 833. And see Baltimore & Ohio S.W.R. Co. v. Settle, 1922, 260 U.S. 166, 171, 43 S.Ct. 28, 30, 67 L.Ed. 189; Galveston, H. & S.A.R. Co. v. Woodbury, 1920, 254 U.S. 357, 41 S.Ct. 114, 65 L.Ed. 301. In this case respondent undertook a voyage from Connecticut to Massachusetts, with a temporary stopover for transfer along the way. And it goes unchallenged here that the redcap to whom she entrusted her baggage was a railroad employee performing functions, whether viewed as services in connection with an interrupted through trip from Meriden to Fall River or with the second unquestionably interstate leg of respondent's journey, incident to interstate travel and reached by the terms of the Interstate Commerce Act. Cf. Williams v. Jacksonville Terminal Co., 1942, 315 U.S. 386, 394, 397, 62 S.Ct. 659, 665, 666, 86 L.Ed. 914; Stopher v. Cincinnati Union Terminal Co., 246 I.C.C. 41 (1941).4 The Interstate Commerce Act, therefore, must control to whatever extent its provisions apply. 4 With the enactment in 1906 of the Carmack Amendment, Congress superseded diverse state laws with a nationally uniform policy governing interstate carriers' liability for property loss. E.G., Adams Express Co. v. Croninger, 1913, 226 U.S. 491, 504—505, 33 S.Ct. 148, 151, 57 L.Ed. 314; Kansas City Southern R. Co. v. Carl, 1913, 227 U.S. 639, 648—649, 33 S.Ct. 391, 393—394, 57 L.Ed. 683. Insofar as now pertinent that enactment provided that any interstate railroad 'receiving property for transportation * * * shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it * * *, and no contract, receipt, rule, or regulation shall exempt such * * * railroad * * * from the liability hereby imposed.5 In 1915 Congress fortified the Carmack Amendment by adding, in part, that 'any such limitation, without respect to the manner or form in which it is sought to be made is hereby declared to be unlawful and void'.6 One year later, however, a proviso qualified that prohibition by rendering it inapplicable 'first, to baggage carried on passenger trains * * *, or trains * * * carrying passengers; second, to property * * * received for transportation concerning which the carrier shall have been or shall hereafter be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released * * *.'7 5 We assume that petitioner's tariff was properly filed pursuant to a lawful authorization by the Interstate Commerce Commission. In Stopher v. Cincinnati Union Terminal Co., 246 I.C.C. 41, 44—47 (1941), the Commission determined that an interstate railroad's redcap services constituted railroad transportation as defined by the Act, and directed that a tariff covering service charges be filed.8 See also Dayton Union R. Co. Tariff for Redcap Service, 256 I.C.C. 289 (1943); Redcap Service, Cincinnati, Columbus, Indianapolis, 277 I.C.C. 427 (1950). Petitioner railroad participated in filing New England Joint Tariff RC No. 3—N with the Commission. Cf. American Railway Express Co. v. Lindenburg, 1923, 260 U.S. 584, 588—589, 43 S.Ct. 206, 208, 67 L.Ed. 414. In addition to listing a schedule of charges per piece and truckload of baggage, that tariff declares that 'Carriers will not accept a greater liability than Twenty-five (25) Dollars per bag or parcel * * * handled by Red Caps under the provisions of this tariff, unless a greater value is declared in writing by the passenger. If a greater value is so declared in writing by the passenger, an additional charge of Ten (10) Cents per bag or parcel will be made for each One Hundred (100) Dollars or fraction thereof above Twenty-five (25) Dollars so declared. Any bag or parcel which is declared by the passenger to have a value in excess of Five Hundred (500) Dollars will not be accepted for handling by Red Caps under the provisions of this tariff.' 6 Clearly that limitation of liability is voided by the Act unless saved by the statutory proviso. Adams Express Co. v. Darden, 1924, 265 U.S. 265, 44 S.Ct. 502, 68 L.Ed. 1010; Chicago, M. & St. P.R. Co. v. McCaull-Dinsmore Co., 1920, 253 U.S. 97, 40 S.Ct. 504, 64 L.Ed. 801. The excepted 'baggage carried on passenger trains' refers solely to free baggage checked through on a passenger fare. See, e.g., Boston & Maine R. Co. v. Hooker, 1914, 233 U.S. 97, 117, 34 S.Ct. 526, 530, 58 L.Ed. 868.9 It cannot apply to redcap service for which the carrier exacts a separate charge because the cost of providing that facility is not an element in the determination of passenger rates. Redcap Service, Cincinnati, Columbus, Indianapolis, 277 I.C.C. 427, 436 (1950).10 The limitation must therefore qualify under the proviso as part of an authorized schedule of rates graduated according to property valuations in writing. Petitioner's tariff on its face does not deviate from the statutory standard, and it may be read as complying with the law. Cf. American Railway Express Co. v. Lindenburg, supra; Cincinnati, N.O. & T.P.R. Co. v. Rankin, 1916, 241 U.S. 319, 327, 36 S.Ct. 555, 558, 60 L.Ed. 1022. 7 But the facts here do not bring the case within the statutory conditions. There was no 'value declared in writing by the shipper or agreed upon in writing'; in fact, not even a baggage check reciting a limitation provision changed hands.11 Moreover, the actual value of respondent's baggage exceeded $500; the tariff itself deems such highly valued property unacceptable for handling by redcaps. But only by granting its customers a fair opportunity to choose between higher or lower liability by paying a correspondingly greater or lesser charge can a carrier lawfully limit recovery to an amount less than the actual loss sustained. Boston & Maine R. Co. v. Piper, 1918, 246 U.S. 439, 444—445, 38 S.Ct. 354, 355, 62 L.Ed. 820; Union Pacific R. Co. v. Burke, 1921, 255 U.S. 317, 321—323, 41 S.Ct. 283, 284—285, 65 L.Ed. 656; cf. The Steamship Ansaldo San Giorgio I v. Rheinstrom Bros. Co., 1935, 294 U.S. 494, 497—498, 55 S.Ct. 483, 484—485, 79 L.Ed. 1016. Binding respondent by a limitation which she had no reasonable opportunity to discover would effectively deprive her of the requisite choice;12 such an arrangement would amount to a forbidden attempt to exonerate a carrier from the consequences of its own negligent acts. Ibid.; cf. Watson Bros. Transp. Co. v. Feinberg Kosher Sausage Co., 8 Cir., 1951, 193 F.2d 283, 286. 'The great object of the law governing common carriers was to secure the utmost care in the rendering of a service of the highest importance to the community. A carrier who stipulates not to be bound to the exercise of care and diligence 'seeks to put off the essential duties of his employment.' It is recognized that the carrier and the individual customer are not on an equal footing. 'The latter * * * cannot afford to higgle or stand out and seek redress in the courts." Santa Fe, P. & P.R. Co. v. Grant Bros. Construction Co., 1913, 228 U.S. 177, 184—185, 33 S.Ct. 474, 477, 57 L.Ed. 787. In sum, respondent cannot be held bound by petitioner's limitation, and the judgment of the Connecticut Supreme Court of Errors must be 8 Affirmed. 9 Mr. Justice JACKSON took no part in the consideration or decision of this case. 1 R. 7—9. The decision of the Meriden City Court is not reported. 2 1952, 139 Conn. 278, 282, 93 A.2d 165, 167. 3 139 Conn. at page 283, 93 A.2d at page 167. 4 Neither here nor in Williams was the Commission's ruling in the Stopher case challenged. 5 34 Stat. 595, 49 U.S.C. § 20(11), 49 U.S.C.A. § 20(11). 6 38 Stat. 1197, 49 U.S.C. § 20(11), 49 U.S.C.A. § 20(11). The 1915 amendment was qualified by the following proviso: 'Provided, however, That if the goods are hidden from view by wrapping, boxing, or other means, and the carrier is not notified as to the character of the goods, the carrier may require the shipper to specifically state in writing the value of the goods, and the carrier shall not be liable beyond the amount so specifically stated, in which case the Interstate Commerce Commission may establish and maintain rates for transportation, dependent upon the value of the property shipped as specifically stated in writing by the shipper.' The object of the legislation was the imposition of full liability on carriers except (1) 'where the property shipped is hidden from view by wrapping, (so) that the representation as to value made by the shipper (should) in all cases be binding upon him;' (2) where the Interstate Commerce Commission authorizes rates based upon value as represented by the shipper, in which case the carrier's liability is limited to the represented value. S.Rep.No. 407, 63d Cong., 2d Sess., p. 3; H.R.Rep. No. 1341, 63d Cong., 3d Sess., p. 2. The Commission held the first exception applicable to transportation of passenger baggage and recognized carriers' right to promulgate pertinent terms and conditions dependent on passengers' declared valuations. In re The Cummins Amendment, 33 I.C.C. 682, 696—697 (1915). In the following year, Congress in effect overruled that determination. See note 7, infra. 7 39 Stat. 442, 49 U.S.C. § 20(11), 49 U.S.C.A. § 20(11). The Committee Report accompanying the 1916 legislation observed in reference to the 1915 proviso: 'The construction put upon the proviso by the Interstate Commerce Commission has resulted in some vexatious requirements insisted upon by carriers and in some injustice. For instance, it has been held by the commission that under the proviso the carrier may compel the shipper to state the value of the goods tendered for shipment and that if the true value is not stated the shipper is liable to criminal prosecution under section 10 of the act to regulate commerce. The committee does not agree with the commission in the interpretation so placed upon the proviso, but there is no way in which to remedy the matter except to make the intent of Congress so clear that it is impossible to misunderstand it. Further, the commission had held that baggage carried on passenger trains upon the ticket of a passenger is within the terms of the law. Whether this construction is correct or incorrect, it is palpable that baggage so transported on a passenger fare ought not to be subject to the rule which controls ordinary freight, and in the bill now reported it is excepted in express terms.' Congress eliminated the 1915 proviso, therefore, and explained the aim of the 1916 legislation 'to restore the law of full liability as it existed prior to the Carmack amendment of 1906, so that when property is lost or damaged in the course of transportation under such circumstances as to make the carrier liable recovery is had for full value or on the basis of full value. From this general rule there is excepted, first, baggage carried on passenger trains. This is done for obvious reasons. Second, other property * * *, with respect to which the Interstate Commerce Commission has fixed or authorized affirmatively a rate dependent upon value, either an agreed or a released value.' (Emphasis added.) S.Rep. No. 394, 64th Cong., 1st Sess., p. 2. 8 See 49 U.S.C. §§ 1(1), 1(3), 1(5)(a), 6(1), 49 U.S.C.A. §§ 1(1, 3), (5) (a), 6(1). 9 Cf. 49 U.S.C. § 22, 49 U.S.C.A. § 22, referring to 'free baggage' carried on passenger tickets. See also notes 7, supra, and 10, infra. 10 That distinction has long been recognized by the Commission. National Baggage Committee v. Atchison, T. & S.F.R. Co., 32 I.C.C. 152 (1914); In re The Cummins Amendment, 33 I.C.C. 682, 696 (1915); Ellison-White Chautauqua System v. Director General, 68 I.C.C. 492, 495 (1922). In fact, only recently the Commission disallowed a proposed tariff of charges for passenger baggage because of 'the long and universally established practice of permitting a reasonable amount of a passenger's baggage, whether in the baggage car on in his personal possession, to be carried as a part of the passenger-fare contract, and the apparently uniform sanction of such a practice by the courts and the regulatory bodies.' Service Charges for Checking Baggage, 288 I.C.C. 691, 695 (1953). 11 See Caten v. Salt City Movers & Storage Co., 2 Cir., 1945, 149 F.2d 428, 432. We need not now consider whether an inscribed baggage receipt would constitute a sufficient writing to satisfy the statute, compare American Railway Express Co. v. Lindenburg, 1923, 260 U.S. 584, 590—591, 43 S.Ct. 206, 208—209, 67 L.Ed. 414, or whether a carrier's refusal to handle property above a certain value is permissible at all. 12 Boston & Maine R. Co. v. Hooker, 1914, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868, and New York Central & H.R.R. Co. v. Beaham, 1916, 242 U.S. 148, 37 S.Ct. 43, 61 L.Ed. 210, cannot control this case. Neither decision involved the Act as amended by the 1915 and 1916 legislation; both dealt with free baggage checked through on a passenger ticket; the carrier in both cases had supplied some notice of its limitation of liability. In Galveston, H. & S.A.R. Co. v. Woodbury, 1920, 254 U.S. 357, 41 S.Ct. 114. 65 L.Ed. 301, the sole issue raised or considered related to the interstate nature of the passenger's journey.
910
346 U.S. 100 73 S.Ct. 1007 97 L.Ed. 1480 DISTRICT OF COLUMBIAv.JOHN R. THOMPSON CO., Inc. No. 617. Argued April 30 and May 1, 1953. Decided June 8, 1953. [Syllabus from pages 100-101 intentionally omitted] Mr. Chester H. Gray, Washington, D.C., for petitioner. Mr. Ringgold Hart, Washington, D.C., for respondent. Mr. Philip Elman, Washington, D.C., for U.S. amicus curiae, by special leave of Court. Mr. Edward F. Colladay, Washington, D.C., for Washington Board of Trade, amicus curiae, by special leave of Court. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This is a criminal proceeding prosecuted by information against respondent for refusal to serve certain members of the Negro race at one if its restaurants in the District of Columbia solely on account of the race and color of those persons. The information is in four counts, the first charging a violation of the Act of the Legislative Assembly of the District of Columbia,1 June 20, 1872, and the others charging violations of the Act of the Legislative Assembly of the District of Columbia,2 June 26, 1873, L.Dist.Col.1871—1873, pp. 65, 116. Each Act makes it a crime to discriminate against a person on account of race or color or to refuse service to him on that ground. 2 The Municipal Court quashed the information on the ground that the 1872 and 1873 Acts had been repealed by implication on the enactment by Congress of the Organic Act of June 11, 1878, 20 Stat. 102. On appeal the Municipal Court of Appeals held that the 1872 and 1873 Acts were valid when enacted, that the former Act insofar as it applies to restaurants, had been repealed, but that the latter Act was still in effect. It therefore affirmed the Municipal Court insofar as it dismissed the count based on the 1872 Act and reversed the Municipal Court on the other counts. 81 A.2d 249. On cross-appeal, the Court of Appeals held that the 1872 and 1873 Acts were unenforceable and that the entire information should be dismissed. 92 U.S.App.D.C. —-, 203 F.2d 579. The case is here on certiorari. I. 3 The history of congressional legislation dealing with the District of Columbia begins with the Act of July 16, 1790, 1 Stat. 130, by which the District was established as the permanent seat of the Government of the United States. We need not review for the purposes of this case the variety of congressional enactments pertaining to the management of the affairs of the District between that date and 1871. It is with the Organic Act of February 21, 1871, 16 Stat. 419, that we are particularly concerned. 4 That Act created a government by the name of the District of Columbia, constituted it 'a body corporate for municipal purposes' with all of the powers of a municipal corporation 'not inconsistent with the Constitution and laws of the United States and the provisions of this act', and gave it jurisdiction over all the territory within the limits of the District. § 1. , the Act vested 'legislative power and authority' in a Legislative Assembly consisting of a Council and a House of Delegates, members of the Council to be appointed by the President with the advice and consent of the Senate and members of the House of Delegates to be elected by male citizens residing in the District. §§ 5, 7. The act provided, with exceptions not material here,3 that 'the legislative power of the District shall extend to all rightful subjects of legislation within said District, consistent with the Constitution of the United States and the provisions of this act'. § 18. All acts of the Legislative Assembly were made subject at all times 'to repeal or modification' by Congress. § 18. And it was provided that nothing in the Act should be construed to deprive Congress of 'the power of legislation' over the District 'in as ample manner as if this law had not been enacted.' § 18. Executive power was vested in a governor appointed by the President by and with the advice of the Senate. § 2. And it was provided that the District should have in the House of Representatives an elected delegate having the same rights and privileges as those of delegates from federal territories. § 34. 5 This government (which was short-lived4) was characterized by the Court is a 'territorial government.' Eckloff v. District of Columbia, 135 U.S. 240, 241, 10 S.Ct. 752, 34 L.Ed. 120. The analogy is an apt one. The grant to the Legislative Assembly by § 18 of legislative power which extends 'to all rightful subjects of legislation' is substantially identical with the grant of legislative power to territorial governments which reads: 'The legislative power of every Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States.' R.S. § 1851. 6 The power of Congress over the District and its power over the Territories are phrased in very similar language in the Constitution. Article I, § 8, cl. 17 of the Constitution provides that 'The Congress shall have Power * * * To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States'. Article IV, § 3, cl. 2 of the Constitution grants Congress authority over territories in the following words: 7 'The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *.' 8 The power of Congress to delegate legislative power to a territory is well settled. Simms v. Simms, 175 U.S. 162, 168, 20 S.Ct. 58, 60, 44 L.Ed. 115; Binns v. United States, 194 U.S. 486, 491, 24 S.Ct. 816, 817, 48 L.Ed. 1087; Christianson v. King County, 239 U.S. 356, 365, 36 S.Ct. 114, 118, 60 L.Ed. 327. The power which Congress constitutionally made delegate to a territory (subject of course to 'the right of Congress to revise, alter, and revoke,' Hornbuckle v. Toombs, 18 Wall. 648, 655, 21 L.Ed. 966, covers all matters 'which, within the limits of a state, are regulated by the laws of the state only.'5 Simms v. Simms, supra, 175 U.S. at page 168, 20 S.Ct. at page 60. 9 The power of Congress to grant self-government to the District of Columbia under Art. I, § 8, cl. 17 of the Constitution would seem to be as great as its authority to do so in the case of territories. But a majority of the judges of the Court of Appeals held that Congress had the constitutional authority to delegate 'municipal' but not 'general' legislative powers and that the Acts of 1872 and 1873, being in the nature of civil rights legislation, fell in the latter group and were for Congress alone to enact. In reaching that conclusion the Court of Appeals relied upon two decisions of the Court, Stoutenburgh v. Hennick, 129 U.S. 141, 9 S.Ct. 256, 32 L.Ed. 637, and Metropolitan R. Co. v. District of Columbia, 132 U.S. 1, 10 S.Ct. 19, 33 L.Ed. 231. The first of these cases involved an act of the Legislative Assembly of the District imposing a license tax on businesses within the District. The Court held, following Robbins v. Taxing District of Shelby County, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694, that it could not be constitutionally applied to a representative of a Maryland company soliciting orders in the District of Columbia. The result would have been the same, as the Robbins case indicates, had a state rather than the District enacted such a law. So, while it is true that the Court spoke of the authority of Congress to delegate to the District the power to prescribe 'local regulation' but not 'general legislation,' those words in the setting of the case suggest no more than the difference between local matters on the one hand and national matters, such as interstate commerce, on the other. 10 The second of these cases, Metropolitan R. Co. v. District of Columbia, 132 U.S. 1, 10 S.Ct. 19, 33 L.Ed. 231, presented the question of the capacity of the District of Columbia to sue. The Court held that it might do so, noting that while the District was 'a separate political community', its sovereign power was lodged in the Congress. 'The subordinate legislative powers of a municipal character, which have been or may be lodged in the city corporations, or in the District corporation, do not make those bodies sovereign. Crimes committed in the District are not crimes against the District, but against the United States. Therefore, while the District may, in a sense, be called a state, it is such in a very qualified sense.' 132 U.S. at page 9, 10 S.Ct. at page 22. But there is no suggestion in that case that Congress lacks the authority under the Constitution to delegate the powers of home rule to the District. 11 The power of Congress over the District of Columbia relates not only to 'national power' but to 'all the powers of legislation which may be exercised by a state in dealing with its affairs'. Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435, 52 S.Ct. 607, 609, 76 L.Ed. 1204. And see Stoutenburgh v. Hennick, supra, 129 U.S. at page 147, 9 S.Ct. 256. There is no reason why a state, if it so chooses, may not fashion its basic law so as to grant home rule or self-government to its municipal corporations. The Court in Barnes v. District of Columbia, 91 U.S. 540, 544, 23 L.Ed. 440, in construing the Organic Act of February 21, 1871, the one with which we are presently concerned, stated: 12 'A municipal corporation, in the exercise of all of its duties, including those most strictly local or internal, is but a department of the State. The legislature may give it all the powers such a being is capable of receiving, making it a miniature State within its locality.' 13 This is the theory which underlies the constitutional provisions of some states allowing cities to have home rule.6 So it is that decision after decision has held that the delegated power of municipalities is as broad as the police power of the state, except as that power may be restricted by terms of the grant or by the state constitution. See McQuillin, The Law of Municipal Corporations (3d ed. 1949), § 16.02 et seq. And certainly so far as the Federal Constitution is concerned there is no doubt that legislation which prohibits discrimination on the basis of race in the use of facilities serving a public function is within the police power of the states. See Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93—94, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072; Bob-Lo Excursion Co. v. People of State of Michigan, 333 U.S. 28, 34, 68 S.Ct. 358, 361, 92 L.Ed. 455. It would seem then that on the analogy of the delegation of powers of self-government and home rule both to municipalities and to territories there is no constitutional barrier to the delegation by Congress to the District of Columbia of full legislative power subject of course to constitutional limitations to which all lawmaking is subservient and subject also to the power of Congress at any time to revise, alter, or revoke the authority granted. 14 There is, however, a suggestion that the power of Congress 'To exercise exclusive Legislation' granted by Art. I, § 8, cl. 17 of the Constitution is nondelegable because it is 'exclusive.' But it is clear from the history of the provision that the word 'exclusive' was employed to eliminate any possibility that the legislative power of Congress over the District was to be concurrent with that of the ceding states. See The Federalist, No. 43; Elliott's Debates, pp. 432—433; 2 Story, Commentaries (4th ed. 1873), § 1218. Madison summed up the need for an 'exclusive' power in the Congress as follows: 15 'Let me remark, if not already remarked, that there must be a cession, by particular states, of the district to Congress, and that the states may settle the terms of the cession. The states may make what stipulation they please in it, and, if they apprehend any danger, they may refuse it altogether. Howe could the general government be guarded from the undue influence of particular states, or from insults, without such exclusive power?' 16 See Elliott's, op. cit., supra, p. 433. 17 We conclude that the Congress had the authority under Art. I, § 8, cl. 17 of the Constitution to delegate its lawmaking authority to the Legislative Assembly of the municipal corporation which was created by the Organic Act of 1871 and that the 'rightful subjects of legislation' within the meaning of § 18 of that Act was as broad as the police power of a state so as to include a law prohibiting discriminations against Negroes by the owners and managers of restaurants in the District of Columbia. II. 18 The Acts of 1872 and 1873 survived, we think, all subsequent changes in the government of the District of Columbia and remain today a part of the governing body of laws applicable to the District. The Legislative Assembly was abolished by the Act of June 20, 1874, 18 Stat. 116. That Act provided that the District should be governed by a Commission. § 2. The Revised Statutes relating to the District of Columbia, approved June 20, 1874,7 kept in full force the prior laws and ordinances 'not inconsistent with this chapter, and except as modified or repealed by Congress or the legislative assembly of the District'. § 91. Those Acts were followed by the present Organic Act of the District of Columbia approved June 11, 1878, 20 Stat. 102, which provides that 'all laws now in force relating to the District of Columbia not inconsistent with the provisions of this act shall remain in full force and effect.' § 1. We find nothing in the 1874 Act nor in the 1878 Act inconsistent with the Acts here in question. And we find no other intervening act which would effect a repeal of them. Nor is there any suggestion in the briefs or oral argument that the acts of 1872 and 1873, presently litigated, did not survive the Acts of 1874 and 1878. It indeed appears the Acts of 1874 and 1878 precluded the repeal of these anti-discrimination laws except by an Act of Congress. As Metropolitan R. Co. v. District of Columbia, supra, 132 U.S. at page 7, 10 S.Ct. at page 22 says the 'legislative powers' of the District ceased with the Organic Act and thereafter municipal government was confined 'to mere administration.' 19 The Commissioners by the Joint Resolution of February 26, 1892, 27 Stat. 394, were vested with local legislative power as respects 'reasonable and usual police regulations'.8 But there is no suggestion that their power to make local ordinances was ever exercised to supplant these anti-discrimination laws of the Legislative Assembly with new and different ordinances. Rather the argument is that the 1872 and 1873 Acts were repealed by the Code of 1901, 31 Stat. 1189. Section 1636 of that Code provides in part: 20 'All acts and parts of acts of the general assembly of the State of Maryland general and permanent in their nature, all like acts and parts of acts of the legislative assembly of the District of Columbia, and all like acts and parts of acts of Congress applying solely to the District of Columbia in force in said District on the day of the passage of this act are hereby repealed, except: * * *. 21 'Third. Acts and parts of acts relating to the organization of the District government, or to its obligations, or the powers or duties of the Commissioners of the District of Columbia, or their subordinates or employees, or to police regulations, and generally all acts and parts of acts relating to municipal affairs only, including those regulating the charges of public-service corporations. * * *' 22 The Court of Appeals held that these anti-discrimination laws were 'general and permanent' legislation within the meaning of § 1636 and repealed by it, not being saved by the exceptions. The Department of Justice presents an elaborate argument, based on the legislative history of the 1901 Code, to the effect that the anti-discrimination laws here involved were not 'general and permanent' laws within the meaning of § 1636. But the lines of analysis presented are quite shadowy; and we find it difficult not to agree that the 1872 and 1873 Acts were 'general and permanent' as contrasted to statutes which are private, special, or temporary. That is the sense in which we believe the words 'general and permanent' were used in the Code. We conclude, however, that they were saved from repeal by the Third exception clause quoted above. 23 It is our view that these anti-discrimination laws governing restaurants in the District are 'police regulations' and acts 'relating to municipal affairs' within the meaning of the Third exception in § 1636. The Court of Appeals in United States v. Cella, 37 App.D.C. 433, 435, in construing an Act providing that prosecutions for violations of penal statutes 'in the nature of police or municipal regulations' should be in the name of the District, said, 24 'A municipal ordinance or police regulations is peculiarly applicable to the inhabitants of a particular place; in other words, it is local in character.' 25 The laws which require equal service to all who eat in restaurants in the District are as local in character as laws regulating public health, schools, streets, and parks. In Johnson v. District of Columbia, 30 App.D.C. 520, the Court of Appeals held that an Act of the Legislative Assembly prohibiting cruelty to animals was a police regulation saved from repeal by the Third exception to § 1636. The court said it was legislation 'in the interest of peace and order' and conducive 'to the morals and general welfare of the community.' 30 App.D.C. at page 522. Regulation of public eating and drinking establishments in the District has been delegated by Congress to the municipal government from the very beginning.9 In terms of the history of the District of Columbia there is indeed no subject of legislation more firmly identified with local affairs than the regulation of restaurants. 26 There remains for consideration only whether the Acts of 1872 and 1873 were abandoned or repealed as a result of non-use and administrative practice. There was one view in the Court of Appeals that these laws are presently unenforceable for that reason. We do not agree. The failure of the executive branch to enforce a law does not result in its modification or repeal. See Louisville & N.R. Co. v. United States, 282 U.S. 740, 759, 51 S.Ct. 297, 304, 75 L.Ed. 672; United States v. Morton Salt Co., 338 U.S. 632, 647, 648, 70 S.Ct. 357, 366, 94 L.Ed. 401. The repeal of laws is as much a legislative function as their enactment.10 27 Congress has had the power to repeal the 1872 and 1873 Acts from the dates of their passage by the Legislative Assembly. But as we have seen, it has not done so. 28 Congress also has had the authority to delegate to a municipal government for the District the power to pass laws which would alter or repeal the Acts of the Legislative Assembly. As we have seen, the Organic Act of the District of Columbia approved June 11, 1878, withdrew legislative powers from the municipal government. In 1892 the Commissioners were given legislative power as respects 'reasonable and usual police regulations'.11 That legislative authority could have been employed to repeal the Acts of 1872 and 1873. See Stevens v. Stoutenburgh, 8 App.D.C. 513. For as we have noted, regulations of restaurants is a matter plainly within the scope of police regulation. But the Commissioners passed no ordinances dealing with the rights of Negroes in the restaurants of the District. It is argued that their power to do so was withdrawn by Congress in the Code of 1901. It is pointed out that the Code of 1901 kept in force the acts, ordinances, and regulations not repealed;12 and from that the conclusion is drawn that only Congress could thereafter amend or repeal these enactments of the Legislative Assembly. 29 We find it unnecessary to resolve that question. For even if we assume that after the Code of 1901 the Commissioners had the authority to replace these anti-discrimination laws with other ones, we find no indication that they ever did so. Certainly no ordinance was enacted which purported to repeal or modify those laws or which, by providing a different measure of a restaurant owner's duty, established a standard in conflict with that provided by the Legislative Assembly. 30 But it is said that the licensing authority of the Commissioners over restaurants has been employed for 75 years without regard to the equal service requirements of the 1872 and 1873 Acts, that no licenses have been forfeited for violations of those Acts, and that the licensing authority of the Commissioners has been employed in effect to repeal or set aside the provisions of those Acts. But those regulations are health, safety, and sanitary measures.13 They do not purport to be a complete codification of ordinances regulating restaurants. They contain neither a requirement that Negroes be segregated nor that Negroes be treated without discrimination. The case therefore appears to us no different than one where the executive department neglects or refuses to enforce a requirement long prescribed by the legislature. 31 It would be a more troublesome case if the 1872 and 1873 Acts were licensing laws which through the years had been modified and changed under the legislative authority of the Commissioners. But these Acts do not provide any machinery for the granting and revocation of licenses. They are regulatory laws prescribing in terms of civil rights the duties of restaurant owners to members of the public. Upon conviction for violating their provisions, penalties are imposed. There is a fine and in addition a forfeiture of license without right of renewal for a year. But these Acts, unlike the sanitary requirements laid upon restaurants,14 do not prescribe conditions for the issuance of a license. Like the regulation of wages and hours of work, the employment of minors, and the requirement that restaurants have flameproof draperies,15 these laws merely regulate a licensed business. Therefore, the exercise of the licensing authority of the Commissioners could not modify, alter, or repeal these laws.16 Nor can we discover any other legislative force which has removed them from the existing body of law. 32 Cases of hardship are put where criminal laws so long in disuse as to be no longer known to exist are enforced against innocent parties. But that condition does not bear on the continuing validity of the law; it is only an ameliorating factor in enforcement. 33 We have said that the Acts of 1872 and 1873 survived the intervening changes in the government of the District of Columbia and are presently enforceable. We would speak more accurately if we said that the 1873 Act survived. For there is a subsidiary question, which we do not reach and which will be open on remand of the cause of the Court of Appeals, whether the 1872 Act under which the first count of the information is laid was repealed by the 1873 Act. On that we express no opinion. 34 Reversed. 35 Mr. Justice JACKSON took no part in the consideration or decision of this case. 1 Section 3 of this Act provides as follows: 'That any restaurant keeper or proprietor, any hotel keeper or proprietor, proprietors or keepers of ice-cream saloons or places where soda-water is kept for sale, or keepers of barber shops and bathing houses, refusing to sell or wait upon any respectable well-behaved person, without regard to race, color, or previous condition of servitude, or any restaurant, hotel, ice-cream saloon or soda fountain, barber shop or bathing-house keepers, or proprietors, who refuse under any pretext to serve any well-behaved, respectable person, in the same room, and at the same prices as other well-behaved and respectable persons are served, shall be deemed guilty of a misdemeanor, and upon conviction in a court having jurisdiction, shall be fined one hundred dollars, and shall forfeit his or her license as keeper or owner of a restaurant, hotel, ice-cream saloon, or soda fountain, as the case may be, and it shall not be lawful for the Register or any officer of the District of Columbia to issue a license to any person or persons, or to their agent or agents, who shall have forfeited their license under the provisions of this act, until a period of one year shall have elapsed after such forfeiture.' 2 Sections 1 and 2 of the 1873 Act provide for the posting of a schedule of prices by restaurants and other eating or drinking establishments and for the filing of those schedules with the Register of the District. Section 3 provides in part: 'That the proprietor or proprietors, keeper or keepers, of any licensed restaurant, eating-house, bar-room, sample-room, ice-cream saloon, or soda-fountain room shall sell at and for the usual or common prices charged by him, her, or them, as contained in said printed cards or papers, any article or thing kept for sale by him, her, or them to any well-behaved and respectable person or persons who may desire the same, or any part or parts thereof, and serve the same to such person or persons in the same room or rooms in which any other well-behaved person or persons may be served or allowed to eat or drink in said place or establishment'. Section 4 of the Act provides for a fine of $100 and the forfeiture of the license and a prohibition against its reissuance for a period of one year after the forfeiture. (Italics supplied.) 3 The limitations imposed on the States by Art. I, § 10 of the Constitution were made applicable to the District. § 18. The Legislative Assembly was denied the power to pass designated 'special laws' including the granting of divorces, the remission of fines, penalties, or forfeitures, changing the law of descent, creating any bank of circulation, or authorizing the issuance of notes for circulation as money or currency. § 17. 4 The Temporary Organic Act of June 20, 1874, 18 Stat. 116, substituted a temporary government of three Commissioners appointed by the President. This form of government was placed on a permanent basis by the Organic Act of June 11, 1878, 20 Stat. 102. An account of the 'territorial government' is contained in Washington Past and Present—A History (1930), vol. 1, pp. 130—141. 5 This Court has sustained the validity of territorial statutes dealing with a variety of subjects: Clinton v. Englebrecht, 13 Wall. 434, 20 L.Ed. 659 (regulation of the methods of obtaining jury panels); Snow v. United States, 18 Wall. 317, 85 U.S. 317, 21 L.Ed. 784 (provision for an attorney general, elected by the territorial legislature, to represent the territory and to prosecute crimes against its laws); Hornbuckle v. Toombs, 18 Wall. 648, 85 U.S. 648, 21 L.Ed. 966 (regulation of civil procedure in the courts); Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (statute granting divorce); Cope v. Cope, 137 U.S. 682, 11 S.Ct. 222, 34 L.Ed. 832 (regulation of intestate succession of property); Atchison, T. & S.F.R. Co. v. Sowers, 213 U.S. 55, 29 S.Ct. 397, 53 L.Ed. 695 (limitation on the right to sue for personal injuries); Christianson v. King Company, 239 U.S. 356, 36 S.Ct. 114, 60 L.Ed. 327 (provision for escheat). 6 See Ariz.Const., Art. XIII, § 2; Calif.Const., Art. XI, § 11; Colo.Const., Art. XX, § 6; Mich.Const., Art. VIII, § 21; Minn.Const. Art. IV, § 36, M.S.A.; Mo.Const., Art. VI, § 19; Neb.Const., Art. XI, §§ 2—4; New York Const., Art. IX, § 12; Ohio Const., Art. XVIII, § 3; Okla.Const., Art. XVIII, § 3(a); Ore.Const., Art. XI, § 2; Tex.Const., Art. XI, § 5, Vernon's Ann.St.; Wash.Const., Art. XI, § 10; W.Va.Const., Art. VI, § 39(a); Wis.Const., art. XI, § 3. And see Fordham and Asher, Home Rule Powers in Theory and Practice, 9 Ohio State L.J. 18; McGoldrick, The Law and Practice of Home Rule (1933). 7 Although the compilation of these statutes carries the notation 'Approved June 22, 1874,' it appears that the President actually approved the bill on June 20, 1874. See House Journal, 43rd Congress, First Sess., pp. 1286—1287. 8 Section 2 of that Act authorized the Commissioners 'to make and enforce all such reasonable and usual police regulations * * * as they may deem necessary for the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property within the District of Columbia.' The earlier Act of January 26, 1887, 24 Stat. 368, had given the Commissioners authority to make and enforce 'usual and reasonable police regulations' over specified matters. 9 See Act of May 3, 1802, 2 Stat. 195 (empowering the City of Washington to provide for the licensing and regulation of 'retailers of liquors'); the Act of February 24, 1804, 2 Stat. 254 (authorizing the council of the City of Washington 'to license and regulate, exclusively, hackney coaches, ordinary keepers, retailers and ferries'); the Act of May 15, 1820, 3 Stat. 583 (authorizing the council of the City of Washington to provide 'for licensing, taxing, and regulating, auctions, retailers, ordinaries'). (Italics supplied.) 10 See Snowden v. Snowden, Md., 1 Bland 550, 556; Pearson v. International Distillery, 72 Iowa 348, 357, 34 N.W. 1. We are not concerned here with the type of problem presented by Federal Trade Commission v. Bunte Bros., 312 U.S. 349, 352, 61 S.Ct. 580, 582, 85 L.Ed. 881, where want of assertion of power was deemed significant in determining whether the power had actually been conferred. In the present case the fact that there have been no attempts over the years to enforce the 1872 and 1873 Acts is irrelevant to the problem of statutory construction, since there is no doubt that those Acts made unlawful the refusal to serve a person in a restaurant in the District of Columbia because he was a Negro. 11 See note 8, supra. 12 Section 1636 provided: 'All acts and parts of acts included in the foregoing exceptions, or any of them, shall remain in force except in so far as the same are inconsistent with or are replaced by the provisions of this code.' Moreover, § 1640 provided, 'Nothing in the repealing clause of this code contained shall be held to affect the operation or enforcement in the District of Columbia * * * of any municipal ordinance or regulation, except in so far as the same may be inconsistent with, or is replaced by, some provision of this code.' 13 Congress has granted to the Commissioners authority to license certain businesses, including restaurants. D.C.Code (1951) §§ 47—2301, 47—2327. The Commissioners are authorized to promulgate regulations governing the issuance and revocation of such licenses. Id., § 47—2345. The Commissioners in the Police Regulations of the District of Columbia (1944) have provided various regulations of restaurants, e.g., a requirement that a certificate be obtained from the health officer that the 'premises are in proper sanitary condition,' Art. XVII, § 19; regulation pertaining to garbage disposal, Art. XXI, §§ 2, 3; a requirement that draperies and decorations in restaurants be fireproof, Art. XVII, § 2. The Commissioners on April 1, 1942, promulgated 'Regulations Governing the Establishment and Maintenance of Restaurants, Delicatessens, and Catering Establishments in the District of Columbia.' These regulations, as amended February 23, 1951, impose various sanitation requirements relating to the structures, fixtures, utensils, and personnel employed in restaurants. They provide for revocation of licenses for failure to comply with the regulations and impose a fine of $300 for violations. Congress has also provided numerous health measures to regulate the sale of food. See D.C.Code (1951) § 33—101 et seq.; § 22—3416 et seq. Restaurants which sell alcoholic beverages are regulated under D.C.Code (1951) § 25—101 et seq. 14 See note 13, supra. 15 See note 13, supra. 16 The 1872 and 1873 Acts make mandatory the forfeiture of the license to operate a restaurant once a violation has been established. See notes 1 and 2, supra. More recent laws, enacted by Congress, state the terms on which licenses of various establishments including restaurants may be granted and revoked. See D.C.Code (1951) §§ 47—2301, 47—2302, 47—2327, 47—2345. Sec. 47 2345 grants the Commissioners authority to revoke a license 'when, in their judgment, such is deemed desirable in the interest of public decency or the protection of lives, limbs, health, comfort, and quiet of the citizens of the District of Columbia, or for any other reason they may deem sufficient.' Special provisions are also included for the licensing of persons selling alcoholic beverages and for the revocation of those licenses. D.C.Code (1951) §§ 25—111, 25—115, 25—118. Whether the provisions for forfeiture of licenses contained in the 1872 and 1873 Acts have been modified or superseded by the licensing provisions of those laws is a separate and distinct question on which we intimate no opinion. Even if it were held that the basis for revocation of a restaurant owner's license and the procedure by which that revocation is effected are governed by the later laws, it is clear that the new licensing laws leave unaffected the mandate against discrimination on racial grounds and the provision for a fine of $100 contained in the 1872 and 1873 Acts.
12
346 U.S. 86 73 S.Ct. 998 97 L.Ed. 1470 FEDERAL COMMUNICATIONS COMMISSIONv.RCA COMMUNICATIONS, Inc. MACKAY RADIO & TELEGRAPH CO., Inc. v. RCA COMMUNICATIONS, Inc. Nos. 567, 568. Argued April 29 and 30, 1953. Decided June 8, 1953. Robert L. Stern, Acting Sol. Gen., Washington, D.C., for Federal Communications Commission. Mr. Ralph M. Carson, New York City, for Mackay Radio & Tel. Co. Mr. John T. Cahill, New York City, for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 The Mackay Radio and Telegraph Co. (Mackay) provides radiotelegraph service between the United States and a number of foreign countries. Over the opposition of RCA Communications, Inc. (RCAC), which provides similar service by means of a total of 65 circuits including ones to Portugal and The Netherlands, the Federal Communications Commission authorized Mackay, at that time authorized to communicate with 39 overseas points, to open two new circuits, to Portugal and The Netherlands. RCAC claims that duplicate circuits, already authorized for RCAC and Mackay to 11 other points, are not here 'in the public interest,' in that Mackay has been unable to show any tangible benefit to the public, such as better, cheaper or more comprehensive service, to be derived from the authorization of Mackay's circuits. RCAC also urges, as a second objection to the authorizations, that because of Mackay's corporate affiliation with The Commercial Cable Co. (Commercial), which conducts cable service to these points in competition with another cable carrier, Western Union, as well as with radiotelegraph service, authorization of Mackay would lessen competition between radio and cable service and would weaken the competitive efficiency of Commercial, in violation of § 314 of the Communications Act, 47 U.S.C.A. § 314. 2 The Commission found that competition, that is, duplication of radiotelegraph facilities, would not impair the ability of the existing radio carrier, RCAC, and cable carriers to render adequate service. More facilities are at present authorized than are necessary to handle the present and expected volume of telegraph traffic under normal operating conditions, but Mackay's proposed service would be adequate and would not require substantial new investment. For such reasons the Commission concluded that competition was 'reasonably feasible.' In addition, although it did 'not appear that Mackay's proposed service to each of the points at issue will result in lower rates or speedier service, or will otherwise be superior to or more comprehensive than the service now available via RCAC,' the proposed service would be superior to that now provided by Mackay itself and its affiliated cable company, Commercial. Finding that 'over-all competition for telegraph traffic generally' would be increased, and more effective radiotelegraph competition introduced, the Commission concluded that duplicate facilities should be authorized because of the 'national policy in favor of competition.' From this policy, the Commission said, it follows that 'competition' is in the public interest where competition is 'reasonably feasible.' The Commission, with two members dissenting, thereupon authorized Mackay's proposed service to Portugal and The Netherlands. —- F.C.C. —-. RCAC sought review and was successful in the Court of Appeals on its claim that an applicant must demonstrate, as the Commission found that Mackay had failed to do here, that tangible benefit to the public would be derived from the authorization. 91 U.S.App.D.C. 289, 201 F.2d 694, Prettyman, J., dissenting. 3 We granted certiorari because this case, the first in which the grant of duplicate radiotelegraph circuits has been challenged in the courts, presents an issue of primary importance in authorization, under the Federal Communications Act of 1934, of international radiotelegraph circuits. 345 U.S. 902, 73 S.Ct. 650. 4 With the chaotic scramble for domestic air space that developed soon after the First World War, Congress recognized the need for a more orderly development of the air waves than had been achieved under prior legislation.1 Although the Radio Act of 1912 had forbidden the operation of radio apparatus without a license from the Secretary of Commerce and Labor, judicial decision left him powerless to prevent licensees from using unassigned frequencies, to restrict their transmitting hours and power, or to deny a license on the ground that a proposed station would necessarily interfere with existing stations.2 See National Broadcasting Co. v. United States, 319 U.S. 190, 212, 63 S.Ct. 997, 1007, 87 L.Ed. 1344. Congress thereupon, in the Radio Act of 1927, created the Federal Radio Commission with wide licensing and regulatory powers over interstate and foreign commerce. 5 Congress did not purport to transfer its legislative power to the unbounded discretion of the regulatory body. In choosing among applicants, the Commission was to be guided by the 'public interest, convenience, or necessity,' a criterion we held not to be too indefinite for fair enforcement. New York Central Securities Corp. v. United States, 287 U.S. 12, 53 S.Ct. 45, 77 L.Ed. 138. The statutory standard no doubt leaves wide discretion and calls for imaginative interpretation. Not a standard that lends itself to application with exactude, it expresses a policy, born with exactitude, it expresses a policy, born is 'as concrete as the complicated factors for judgment in such a field of delegated authority permit'. Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656. 6 Congress might have made administrative decision to license not reviewable. Although it is not suggested—or implied by the grant of power to review—that Congress could not have reserved to itself or to the Commission final designation of those who would be permitted to utilize the air waves, precious as they have become with technological advance, it has not done so. On the other hand, the scope of this Court's duty to review administrative determinations under the Federal Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq., 47 U.S.C.A. § 151 et seq., has been carefully defined. Ours is not the duty of reviewing determinations of 'fact,' in the narrow, colloquial scope of that concept. Congress has charged the courts with the responsibility of saying whether the Commission has fairly exercised its discretion within the vaguish, penumbral bounds expressed by the standard of 'public interest.' It is our responsibility to say whether the Commission has been guided by proper considerations in bringing the deposit of its experience, the disciplined feel of the expert, to bear on applications for licenses in the public interest. 7 In this case, the Court of Appeals has ruled that the Commission was guided by a misinterpretation of national policy, in that it thought that the maintenance of competition is in itself a sufficient goal of federal communications policy so as to make it in the public interest to authorize a license merely because competition, i.e., deplication of existing facilities, was 'reasonably feasible.' RCAC relies on the holding of the Court of Appeals that the Commission must decide, in the circumstances of the application, that competition is not merely feasible but beneficial. 8 The Commission has not in this case clearly indicated even that its own experience, entirely apart from the tangible demonstration of benefit for which RCAC contends, leads it to conclude that competition is here desirable. It seems to have relied almost entirely on its interpretation of national policy. Since the Commission professed to dispose of the case merely upon its view of a principle which it derived from the statute and did not base its conclusion on matters within its own special competence, it is for us to determine what the governing principle is. Cf. Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 276, 53 S.Ct. 627, 632, 77 L.Ed. 1166. 9 That there is a national policy favoring competition cannot be maintained today without careful qualification. It is only in a blunt, undiscriminating sense that we speak of competition as an ultimate good. Certainly even in those areas of economic activity where the play of private forces has been subjected only to the negative prohibitions of the Sherman Law, 15 U.S.C.A. § 1 et seq., this Court has not held that competition is an absolute. See Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683; cf. Mason, Monopoly in Law and Economics, 47 Yale L.J. 34. 10 Prohibitory legislation like the Sherman Law, defining the area within which 'competition' may have full play, of course loses its effectiveness as the practical limitations increase; as such considerations severely limit the number of separate enterprises that can efficiently, or conveniently, exist, the need for careful qualification of the scope of competition becomes manifest. Surely it cannot be said in these situations that competition is of itself a national policy. To do so would disregard not only those areas of economic activity so long committed to government monopoly as no longer to be thought open to competition, such as the post office, cf., e.g., 17 Stat. 292 (criminal offense to establish unauthorized post office; provision since superseded), and those areas, loosely spoken of as natural monopolies or—more broadly—public utilities, in which active regulation has been found necessary to compensate for the inability of competition to provide adequate regulation. It would most strikingly disregard areas where policy has shifted from one of prohibiting restraints on competition to one of providing relief from the rigors of competition, as has been true of railroads. Compare, e.g., United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007, and United States v. Joint-Traffic Ass'n, 171 U.S. 505, 19 S.Ct. 25, 43 L.Ed. 259, with the Transportation Act of 1920, 41 Stat. 456, 480, 49 U.S.C.A. § 4; Consolidation of Railroads, 63 I.C.C. 455. 11 Federal legislation affecting railroads is a familiar but far from unique example of those many areas of economic activity in which serious inroads have been made on an original policy favoring competition. Indeed, as to the industry before us in this case, there has been serious qualification of competition as the regulating mechanism. The very fact that Congress has seen fit to enter into the comprehensive regulation of communications embodied in the Federal Communications Act of 1934 contradicts the notion that national policy unqualifiedly favors competition in communications. The Act by its terms prohibits competition by those whose entry does not satisfy the 'public interest' standard. In this field, the reason for such restriction undoubtedly lies primarily in the limited availability of international communication facilities, recognized in a series of international conventions.3 Other considerations may also have applied: Congress may have considered the possible inconvenience to the public of duplicate facilities—as would more clearly be the case with telephones—or the possible inadequacy of the demand for international communications to make more than one enterprise economically or socially desirable. Whatever the reasons, they are not for us to weigh; it is for us to recognize that encouragement of competition as such has not been considered the single or controlling reliance for safeguarding the public interest.4 12 Of course, the fact that there is substantial regulation does not preclude the regulatory agency from drawing on competition for complementary or auxiliary support. Satisfactory accommodation of the peculiarities of individual industries to the demands of the public interest necessarily requires in each case a blend of private forces and public intervention. The Commission itself has recognized as much by its changing policy toward authorization of duplicate facilities.5 But this merely reinforces our conclusion that it is improper for the Commission to suppose that the standard it has adopted is to be derived without more from a national policy defined by legislation and by the courts. Had the Commission clearly indicated that it relied on its own evaluation of the needs of the industry rather than on what it deemed a national policy, its order would have a different foundation. There can be no doubt that competition is a relevant factor in weighing the public interest. Cf. McLean Trucking Co. v. United States, 321 U.S. 67, 86—88, 64 S.Ct. 370, 380—381, 88 L.Ed. 544. Our difficulty arises from the fact that while the Commission recites that competition may have beneficial effects, it does so in an abstract, sterile way.6 Its opinion relies in this case not on its independent conclusion, from the impact upon it of the trends and needs of this industry, that competition is desirable but primarily on its reading of national policy, a reading too loose and too much calculated to mislead in the exercise of the discretion entrusted to it. 13 To say that national policy without more suffices for authorization of a competing carrier wherever competition is reasonably feasible would authorize the Commission to abdicate what would seem to us one of the primary duties imposed on it by Congress. And since we read the opinion of the Commission as saying precisely that, we think the case must be remanded for its reconsideration. We therefore do not say that authorization of Mackay under all the relevant circumstances, including the significance the Commission may rightly attribute to the facts on the basis of its experience, may not be in the public interest.7 We think it not inadmissible for the Commission, when it makes manifest that in so doing it is conscientiously exercising the discretion given it by Congress, to reach a conclusion whereby authorizations would be granted wherever competition is reasonably feasible. This is so precisely because the exercise of its functions gives it accumulating insight not vouchsafed to courts dealing episodically with the practical problems involved in such determination. Here, however, the conclusion was not based on the Commission's own judgment but rather on the unjustified assumption that it was Congress' judgment that such authorizations are desirable. Cf. Texas & Pac. R. Co. v. Gulf, C. & S.F.R. Co., 270 U.S. 266, 277, 46 S.Ct. 263, 266, 70 L.Ed. 578. 14 In reaching a conclusion that duplicating authorizations are in the public interest wherever competition is reasonably feasible, the Commission is not required to make specific findings of tangible benefit. It is not required to grant authorizations only if there is a demonstration of facts indicating immediate benefit to the public. To restrict the Commission's action to cases in which tangible evidence appropriate for judicial determination is available would disregard a major reason for the creation of administrative agencies, better equipped as they are for weighing intangibles 'by specialization, by insight gained through experience, and by more flexible procedure.' Far East Conference v. United States, 342 U.S. 570, 575, 72 S.Ct. 492, 494, 96 L.Ed. 576. In the nature of things, the possible benefits of competition do not lend themselves to detailed forecast, cf. National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 348, 73 S.Ct. 287, 289, but the Commission must at least warrant, as it were, that competition would serve some beneficial purpose such as maintaining good service and improving it. Although we think RCAC's contention that an applicant must demonstrate tangible benefits is asking too much, it is not too much to ask that there be ground for reasonable expectation that competition may have some beneficial effect. Merely to assume that competition is bound to be of advantage, in an industry so regulated and so largely closed as is this one, is not enough. 15 RCAC asks us to uphold the Court of Appeals decision on another ground, that the grant of authorization to Mackay would violate § 314 of the Communications Act, which forbids common ownership, control or operation of radio and cable in international communication whose purpose or effect may be substantially to lessen competition, restrain commerce or unlawfully to create a monopoly. We cannot agree. There has been in recent years a considerable shift of international telegraph traffic from cable to radio, a shift strongly accentuated in some countries, including Portugal and The Netherlands, where the overseas correspondent of American companies is a government-controlled monopoly which strongly advocates radio transmission. RCAC, in the two instances before us, is the beneficiary of this discrimination against cable transmission; with negligible exception, it has a monopoly of radio traffic to these countries. In the light of these circumstances, we think the Commission was justified in finding that the grant of Mackay's authorization would increase, rather than decrease, competition. Although it may be true that the relationship of Mackay to Commercial is such that there is, and would be, no competition between them, we think the Commission was entitled to look at the entire competitive scene and not confine itself to one aspect of it. Mackay and its affiliated cable company had a smaller share of traffic in 1947 than either RCAC or Western Union not only with Portugal and The Netherlands but also with the entire European area. That this authorization would better enable the Mackay system to compete with RCAC and Western Union, and would break up RCAC's monopoly of radio traffic with these countries, seems to us an adequate basis for the Commission's findings under § 314. 16 RCAC's arguments based on comparable language in the Clayton Act, 15 U.S.C.A. § 12 et seq., and on decisions under that Act and under the Sherman Law cannot, we think, be sustained. What may substantially lessen competition in those areas where competition is the main reliance for regulation of the market cannot be automatically transplanted to areas in which active regulation is entrusted to an administrative agency; for reasons we have indicated above, what competition is and should be in such areas must be read in the light of the special considerations that have influenced Congress to make specific provision for the particular industry. We therefore think that the Commission's determination that the grant of authorization to Mackay would not decrease competition, in the special sense in which that word is to be used in this context, is supported by the findings and satisfies the requirements of § 314. 17 For the reasons we have indicated, the judgment of the Court of Appeals is vacated and the case is remanded to that court with instructions to remand it to the Federal Communications Commission for such disposition as is open under this opinion. It is so ordered. 18 Judgment vacated and case remanded with instructions. 19 Mr. Justice BLACK is of the opinion that the Commission's findings have substantial evidential support, that the findings adequately support the Commission's order, that the judgment of the Court of Appeals should be reversed and that the Commission's order should be affirmed. 20 Mr. Justice REED and Mr. Justice JACKSON took no part in the consideration or decision of this case. 21 Mr. Justice DOUGLAS, dissenting. 22 I agree with the Court that it is necessary under the Federal Communications Act to establish that the licensing of a competitive service offers a reasonable expectation of some beneficial effect, measured by the public interest. That was indeed the view of the Court of Appeals. But on this record the facts are that 23 —existing facilities are in excess of those required to handle present and expected traffic; 24 —the proposed operations will redistribute present traffic rather than generate new traffic; 25 —the proposed service will not lower rates nor speed up transmission nor improve the existing service in any respect; 26 —the proposed service will aid Mackay financially and be detrimental to RCA; 27 —this is a field where without the proposed service there is active competition and an excess of facilities to meet present or expected needs. 28 I therefore agree with Judge Edgerton's opinion for the Court of Appeals 91 U.S.App.D.C. 289, 201 F.2d 694, that on this showing the Commission acted without authority and that its order should be set aside. On the record before us the facts are so unequivocal that there is no apparent way for the Commission to meet the standard approved both here and below. There is therefore no occasion for a remand. I would affirm the judgment below. 1 A brief outline of earlier federal regulation of radio and wire communication is given in Administrative Procedure in Government Agencies, Monograph of the Attorney General's Committee on Administrative Procedure, S.Doc. No. 186, 76th Cong., 3d Sess., Part 3, 81—84. Early executive and legislative action regarding the laying of foreign cables is reviewed in 22 Op.Atty.Gen. 13 (1898). 2 See Hoover v. Intercity Radio Co., 52 App.D.C. 339, 286 F. 1003; United States v. Zenith Radio Corp., D.C., 12 F.2d 614; 35 Op.Atty.Gen. 126. 3 See Donovan, The Origin and Development of Radio Law. 21 26. 4 We need not in this case attempt to suggest with any precision where the balance is struck. Certainly the presence of §§ 313 and 314 in the Act, prohibiting certain restrictions on competition, indicates the relevance of some competitive criteria, although it hardly directs the Commission to rely on 'competition.' 5 See Brief for Commission, p. 6: 'From 1934 until 1939, when radiotelegraph was just emerging from its infancy, the Commission generally denied applications for circuits to countries already served by other American radiotelegraph carriers. From 1939 to 1942 the Commission generally granted applications for new circuits, regardless of whether the points involved were served by an existing radiotelegraph circuit. From 1942 to 1943 an affirmative policy of authorizing duplicating American circuits (a 'duplicate circuit policy') was followed as a war measure at the behest of the Defense Communications Board. From 1943 until 1945, also as a war measure, the reverse course (a 'single circuit policy') was followed at the behest of the Board of War Communications (the successor of the Defense Communications Board). 'From 1945 until the decision in the present case (1951) the Commission granted a number of duplicating circuits.' (Citations and footnotes omitted.) 6 The Commission stated in its opinion: 'Competition can generally be expected to provide a powerful incentive for the rendition of better service at lower cost. Those seeking the patronage of customers are spurred on to install the latest developments in the art in order to improve their services or products, and in order to enable them to reduce expenses and thereby lower their rates or prices. The benefits to be derived from competition should, therefore, not be lightly discarded.' R.623. Surely one cannot conclude from this bare statement that the Commission, whatever undisclosed awareness it may have of the problem, has sufficiently laid bare its mind to enable us to perform our reviewing function. And it is certainly not for us to say, at least in the first instance, that authorization would be desirable in these circumstances. 7 We need not stop to consider RCAC's argument that a prior decision of the Commission, the so-called Oslo decision, affirmed by the Court of Appeals for the District of Columbia Circuit, stands in the way. Mackay Radio & Telegraph Co. v. F.C.C., 68 App.D.C. 336, 97 F.2d 641. Although in that case the facts were similar to those here, the Commission there decided that duplicate facilities should not be authorized. In affirming, the Court of Appeals simply affirmed that competition is not necessarily in the public interest, not that it is never in the public interest. The Court stated: 'Appellant contends that the Commission committed error of law in failing to interpret 'public convenience, interest or necessity' as necessarily requiring the licensing of a competing radio circuit to Norway so as to end what appellant describes as the monopoly of RCAC.' 68 App.D.C., at page 337, 97 F.2d at page 642. It concluded, 'In our opinion, the Commission did not err as matter of law in refusing to treat 'public interest, convenience or necessity' as requiring, by definition, the licensing of appellant.' 68 App.D.C. at page 339, 97 F.2d at page 644. We think the precise holding of that case rather supports our conclusion in this case. See Prettyman, J., dissenting below, 91 U.S.App.D.C. at page 294, 201 F.2d at pages 699, 700.
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346 U.S. 119 73 S.Ct. 981 97 L.Ed. 1494 SECURITIES AND EXCHANGE COMMISSIONv.RALSTON PURINA CO. No. 512. Argued April 28, 1953. Decided June 8, 1953. Mr. Roger S. Foster, Washington, D.C., for petitioner. Mr. Thomas S. McPheeters, St. Louis, Mo., for respondent. Mr. Justice CLARK, delivered the opinion of the Court. 1 Section 4(1) of the Securities Act of 1933 exempts 'transactions by an issuer not involving any public offering'1 from the registration requirements of § 5.2 We must decide whether Ralston Purina's offerings of treasury stock to its 'key employees' are within this exemption. On a complaint brought by the Commission under § 20(b) of the Act seeking to enjoin respondent's unregistered offerings, the District Court held the exemption applicable and dismissed the suit.3 The Court of Appeals affirmed.4 The question has arisen many times since the Act was passed; an apparent need to define the scope of the private offering exemption prompted certiorari. 345 U.S. 903, 73 S.Ct. 643. 2 Ralston Purina manufactures and distributes various feed and cereal products. Its processing and distribution facilities are scattered throughout the United States and Canada, staffed by some 7,000 employees. At least since 1911 the company has had a policy of encouraging stock ownership among its employees; more particularly, since 1942 it has made authorized but unissued common shares available to some of them. Between 1947 and 1951, the period covered by the record in this case, Ralston Purina sold nearly $2,000,000 of stock to employees without registration and in so doing made use of the mails. 3 In each of these years, a corporate resolution authorized the sale of common stock 'to employees * * * who shall, without any solicitation by the Company or its officers or employees, inquire of any of them as to how to purchase common stock of Ralston Purina Company.' A memorandum sent to branch and store managers after the resolution was adopted, advised that 'The only employees to whom this stock will be available will be those who take the initiative and are interested in buying stock at present market prices.' Among those responding to these offers were employees with the duties of artist, bakeshop foreman, chow loading foreman, clerical assistant, copywriter, electrician, stock clerk, mill office clerk, order credit trainee, production trainee, stenographer, and veterinarian. The buyers lived in over fifty widely separated communities scattered from Garland, Texas, to Nashua, New Hampshire and Visalia, California. The lowest salary bracket of those purchasing was $2,700 in 1949, $2,435 in 1950 and $3,107 in 1951. The record shows that in 1947, 243 employees bought stock, 20 in 1948, 414 in 1949, 411 in 1950, and the 1951 offer, interrupted by this litigation, produced 165 applications to purchase. No records were kept of those to whom the offers were made; the estimated number in 1951 was 500. 4 The company bottoms its exemption claim on the classification of all offerees as 'key employees' in its organization. Its position on trial was that 'A key employee * * * is not confined to an organization chart. It would include an individual who is eligible for promotion, an individual who especially influences others or who advises others, a person whom the employees look to in some special way, an individual, of course, who carries some special responsibility, who is sympathetic to management and who is ambitious and who the management feels is likely to be promoted to a greater responsibility.' That an offering to all of its employees would be public is conceded. 5 The Securities Act nowhere defines the scope of § 4(1)'s private offering exemption. Nor is the legislative history of much help in staking out its boundaries. The problem was first dealt with in § 4(1) of the House Bill, H.R. 5480, 73d Cong., 1st Sess., which exempted 'transactions by an issuer not with or through an underwriter; * * *.' The bill, as reported by the House Committee, added 'and not involving any public offering.' H.R.Rep. No. 85, 73d Cong., 1st Sess. 1. This was thought to be one of those transactions 'where there is no practical need for * * * (the bill's) application or where the public benefits are too remote.' Id., at 5.5 The exemption as thus delimited became law.6 It assumed its present shape with the deletion of 'not with or through an underwriter' by § 203(a) of the Securities Exchange Act of 1934, 48 Stat. 906, a change regarded as the elimination of superfluous language. H.R.Rep. No. 1838, 73d Cong., 2d Sess. 41. 6 Decisions under comparable exemptions in the English Companies Acts and state 'blue sky' laws, the statutory antecedents of federal securities legislation have made one thing clear—to be public, an offer need not be open to the whole world.7 In Securities and Exchange Comm. v. Sunbeam Gold Mines Co., 9 Cir., 1938, 95 F.2d 699, 701, this point was made in dealing with an offering to the stockholders of two corporations about to be merged. Judge Denman observed that: 7 'In its broadest meaning the term 'public' distinguishes the populace at large from groups of individual members of the public segregated because of some common interest or characteristic. Yet such a distinction is inadequate for practical purposes; manifestly, an offering of securities to all redheaded men, to all residents of Chicago or San Francisco, to all existing stockholders of the General Motors Corporation or the American Telephone & Telegraph Company, is no less 'public', in every realistic sense of the word, than an unrestricted offering to the world at large. Such an offering, though not open to everyone who may choose to apply, is none the less 'public' in character, for the means used to select the particular individuals to whom the offering is to be made bear no sensible relation to the purposes for which the selection is made. * * * To determine the distinction between 'public' and 'private' in any particular context, it is essential to examine the circumstances under which the distinction is sought to be established and to consider the purposes sought to be achieved by such distinction.' 8 The courts below purported to apply this test. The District Court held, in the language of the Sunbeam decision, that 'The purpose of the selection bears a 'sensible relation' to the class chosen,' finding that 'The sole purpose of the 'selection' is to keep part stock ownership of the business within the operating personnel of the business and to spread ownership throughout all departments and activities of the business.'8 The Court of Appeals treated the case as involving 'an offering, without solicitation, of common stock to a selected group of key employees of the issuer, most of whom are already stockholders when the offering is made, with the sole purpose of enabling them to secure a proprietary interest in the company or to increase the interest already held by them.'9 9 Exemption from the registration requirements of the Securities Act is the question. The design of the statute is to protect investors by promoting full disclosure of information thought necessary to informed investment decisions.10 The natural way to interpret the private offering exemption is in light of the statutory purpose. Since exempt transactions are those as to which 'there is no practical need for * * * (the bill's) application,' the applicability of § 4(1) should turn on whether the particular class of persons affected need the protection of the Act. An offering to those who are shown to be able to fend for themselves is a transaction 'not involving any public offering.' 10 The Commission would have us go one step further and hold that 'an offering to a substantial number of the public' is not exempt under § 4(1). We are advised that 'whatever the special circumstances, the Commission has consistently interpreted the exemption as being inapplicable when a large number of offerees is involved.' But the statute would seem to apply to a 'public offering' whether to few or many.11 It may well be that offerings to a substantial number of persons would rarely be exempt. Indeed nothing prevents the commission, in enforcing the statute, from using some kind of numerical test in deciding when to investigate particular exemption claims. But there is no warrant for superimposing a quantity limit on private offerings as a matter of statutory interpretation. 11 The exemption, as we construe it, does not deprive corporate employees, as a class, of the safeguards of the Act. We agree that some employee offerings may come within § 4(1), e.g., one made to executive personnel who because of their position have access to the same kind of information that the act would make available in the form of a registration statement.12 Absent such a showing of special circumstances, employees are just as much members of the investing 'public' as any of their neighbors in the community. Although we do not rely on it, the rejection in 1934 of an amendment which would have specifically exempted employee stock offerings supports this conclusion. The House Managers, commenting on the Conference Report, said that 'the participants in employees' stock-investment plans may be in as great need of the protection afforded by availability of information concerning the issuer for which they work as are most other members of the public.' H.R.Rep. No. 1838, 73d Cong., 2d Sess. 41.13 12 Keeping in mind the broadly remedial purposes of federal securities legislation, imposition of the burden of proof on an issuer who would plead the exemption seems to us fair and reasonable. Schlemmer v. Buffalo, R. & P.R. Co., 1907, 205 U.S. 1, 10, 27 S.Ct. 407, 408, 51 L.Ed. 681. Agreeing, the court below thought the burden met primarily because of the respondent's purpose in singling out its key employees for stock offerings. But once it is seen that the exemption question turns on the knowledge of the offerees, the issuer's motives, laudable though they may be, fade into irrelevance. The focus of inquiry should be on the need of the offerees for the protections afforded by registration. The employees here were not shown to have access to the kind of information which registration would disclose. The obvious opportunities for pressure and imposition make it advisable that they be entitled to compliance with § 5. 13 Reversed. 14 The CHIEF JUSTICE and Mr. Justice BURTON dissent. 15 Mr. Justice JACKSON took no part in the consideration or decision of this case. 1 48 Stat. 77, as amended, 48 Stat. 906, 15 U.S.C. § 77d, 15 U.S.C.A. § 77d. 2 'Sec. 5. (a) Unless a registration statement is in effect as to a security, it shall be unlawful for any person, directly or indirectly— '(1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell or offer to buy such security through the use or medium of any prospectus or otherwise; or '(2) to carry or cause to be carried through the mails or in interstate commerce, by any means or instruments of transportation, any such security for the purpose of sale or for delivery after sale. * * *' 48 Stat. 77, 15 U.S.C. § 77e, 15 U.S.C.A. § 77e. 3 D.C.E.D.Mo.1952, 102 F.Supp. 964. 4 8 Cir., 1952, 200 F.2d 85. 5 '* * * the bill does not affect transactions beyond the need of public protection in order to prevent recurrences of demonstrated abuses.' Id., at 7. In a somewhat different tenor, the report spoke of this as an exemption of 'transactions by an issuer unless made by or through an underwriter so as to permit an issuer to make a specific or an isolated sale of its securities to a particular person, but insisting that if a sale of the issuer's securities should be made generally to the public that transaction shall come within the purview of the Act.' Id., at 15, 16. 6 The only subsequent reference was an oblique one in the statement of the House Managers on the Conference Report: 'Sales of stock to stockholders become subject to the act unless the stockholders are so small in number that the sale to them does not constitute a public offering.' H.R.Rep.No. 152, 73d Cong., 1st Sess. 25. 7 Nash v. Lynde, (1929) A.C. 158; In re South of England Natural Gas and Petroleum Co., Ltd., (1911) 1 Ch. 573; cf. Sherwell v. Combined Incandescent Mantles Syndicate, Ltd., 23 T.L.R. 482, 1907. See 80 Sol.J. 785, 1936. People v. Montague, 1937, 280 Mich. 610, 274 N.W. 347; In re Leach, 1932, 215 Cal. 536, 12 P.2d 3; Mary Pickford Co. v. Bayly Bros., Cal.App., 1937, 68 P.2d 239, modified, 1939, 12 Cal.2d 501, 86 P.2d 102. 8 102 F.Supp. at pages 968, 969. 9 200 F.2d at page 91. 10 A. C. Frost & Co. v. Coeur D'Alene Mines Corp., 1941, 312 U.S. 38, 40, 61 S.Ct. 414, 415, 85 L.Ed. 500. The words of the preamble are helpful: 'An Act To provide full and fair disclosure of the character of securities sold in interstate and foreign commerce and through the mails, and to prevent frauds in the sale thereof, and for other purposes.' 48 Stat. 74. 11 See Viscount Summer's frequently quoted dictum in Nash v. Lynde, "The public' * * * is of course a general word. No particular numbers are prescribed. Anything from two to infinity may serve: perhaps even one, if he is intended to be the first of a series of subscribers, but makes further proceedings needless by himself subscribing the whole.' (1929) A.C. 158, 169. 12 This was one of the factors stressed in an advisory opinion rendered by the Commission's General Counsel in 1935. 'I also regard as significant the relationship between the issuer and the offerees. Thus, an offering to the members of a class who should have special knowledge of the issuer is less likely to be a public offering than is an offering to the members of a class of the same size who do not have this advantage. This factor would be particularly important in offerings to employees, where a class of high executive officers would have a special relationship to the issuer which subordinate employees would not enjoy.' 11 Fed.Reg. 10952. 13 A statement entitled to more weight than different views expressed by one of the conferees in Senate debate. See 78 Cong.Rec. 10181, 10182.
78
346 U.S. 270 73 S.Ct. 1030 97 L.Ed. 1603 Paul SHELTON, Petitioner,v.UNITED STATES of America. No. 235, Misc. Supreme Court of the United States June 15, 1953 PER CURIAM. 1 The petition for certiorari is granted. Upon consideration of the Government's confession of error, after reviewing the record in this case, we vacate the judgments of the Court of Appeals and the District Court. The case is remanded to the District Court for further proceedings in light of the confession of error.
01
346 U.S. 137 73 S.Ct. 1045 97 L.Ed. 1508 BURNS et al.v.WILSON, Secretary of Defense et al. No. 422. Argued Feb. 5, 1953. June 15, 1953. Messrs. Robert L. Carter, New York City, Frank D. Reeves, Washington, D.C., for petitioners. Walter J. Cummings, Sol. Gen., Washington, D.C., for respondent. Mr. Chief Justice VINSON announced the judgment of the Court in an opinion in which Mr. Justice REED, Mr. Justice BURTON and Mr. Justice CLARK join. 1 Tried separately by Army courts-martial on the Island of Guam, petitioners were found guilty of murder and rape and sentenced to death. The sentences were confirmed by the President, and petitioners exhausted all remedies available to them under the Articles of War for review of their convictions by the military tribunals. They then filed petitions for writs of habeas corpus in the United States District Court for the District of Columbia. 2 In these applications petitioners alleged that they had been denied due process of law in the proceedings which led to their conviction by the courts-martial. They charged that they had been subjected to illegal detention; that coerced confessions had been extorted from them; that they had been denied counsel of their choice and denied effective representation; that the military authorities on Guam had suppressed evidence favorable to them, procured perjured testimony against them and otherwise interfered with the preparation of their defenses. Finally, petitioners charged that their trials were conducted in an atmosphere of terror and vengeance, conducive to mob violence instead of fair play. 3 The District Court dismissed the applications without hearing evidence, and without further review, after satisfying itself that the courts-martial which tried petitioners had jurisdiction over their persons at the time of the trial and jurisdiction over the crimes with which they were charged as well as jurisdiction to impose the sentences which petitioners received. Dennis v. Lovett, 104 F.Supp. 310. The Court of Appeals affirmed the District Court's judgment, after expanding the scope of review by giving petitioners' allegations full consideration on their merits, reviewing in detail the mass of evidence to be found in the transcripts of the trial and other proceedings before the military court. Burns v. Lovett, 91 U.S.App.D.C. 208, 202 F.2d 335. 4 We granted certiorari, 344 U.S. 903, 73 S.Ct. 284. Petitioners' allegations are serious, and, as reflected by the divergent bases for decision in the two courts below, the case poses important problems concerning the proper administration of the power of a civil court to review the judgment of a court-martial in a habeas corpus proceeding. 5 In this case, we are dealing with habeas corpus applicants who assert—rightly or wrongly—that they have been imprisoned and sentenced to death as a result of proceedings which denied them basic rights guaranteed by the Constitution. The federal civil courts have jurisdiction over such applications. By statute, Congress has charged them with the exercise of that power.1 Accordingly, our initial concern is not whether the District Court has any power at all to consider petitioners' applications; rather our concern is with the manner in which the Court should proceed to exercise its power. 6 The statute which vests federal courts with jurisdiction over applications for habeas corpus from persons confined by the military courts is the same statute which vests them with jurisdiction over the applications of persons confined by the civil courts. But in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases. Hiatt v. Brown, 1950, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691. Thus the law which governs a civil court in the exercise of its jurisdiction over military habeas corpus applications cannot simply be assimilated to the law which governs the exercise of that power in other instances. It is sui generis; it must be so, because of the peculiar relationship between the civil and military law. 7 Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.2 This Court has played no role in its development; we have exerted no supervisory power over the courts which enforce it; the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment.3 The Framers expressly entrusted that task to Congress. 8 Indeed, Congress has taken great care both to define the rights of those subject to military law, and provide a complete system of review within the military system to secure those rights. Only recently the Articles of War were completely revised, and thereafter, in conformity with its purpose to integrate the armed services, Congress established a Uniform Code of Military Justice applicable to all members of the military establishment.4 These enactments were prompted by a desire to meet objections and criticisms lodged against court-martial procedures in the aftermath of World War II. Nor was this a patchwork effort to plug loopholes in the old system of military justice. The revised Articles and the new Code are the result of painstaking study; they reflect an effort to reform and modernize the system—from top to bottom.5 9 Rigorous provisions guarantee a trial as free as possible from command influence, the right to prompt arraignment, the right to counsel of the accused's own choosing, and the right to secure witnesses and prepare an adequate defense.6 The revised Articles, and their successor—the new Code—also establish a hierarchy within the military establishment to review the convictions of courts-martial, to ferret out irregularities in the trial, and to enforce the procedural safeguards which Congress determined to guarantee to those in the Nation's armed services.7 And finally Congress has provided a special post-conviction remedy within the military establishment, apart from ordinary appellate review, whereby one convicted by a court-martial, may attack collaterally the judgment under which he stands convicted.8 10 The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights. In military habeas corpus cases, even more than in state hebeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings—of the fair determinations of the military tribunals after all military remedies have been exhausted. Congress has provided that these determinations are 'final' and 'binding' upon all courts.9 We have held before that this does not displace the civil courts' jurisdiction over an application for habeas corpus from the military prisoner. Gusik v. Schilder, 1950, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146. But these provisions do mean that when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence. Whelchel v. McDonald, 1950, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141. 11 We turn, then, to this case. 12 Petitioners' applications, as has been noted, set forth serious charges—allegations which, in their cumulative effect, were sufficient to depict fundamental unfairness in the process whereby their guilt was determined and their death sentences rendered. Had the military courts manifestly refused to consider those claims, the District Court was empowered to review them de novo. For the constitutional guarantee of due process is meaningful enough, and sufficiently adaptable, to protect soldiers as well as civilians—from the crude injustices of a trial so conducted that it becomes bent on fixing guilt by dispending with rudimentary fairness rather than finding truth through adherence to those basic guarantees which have long been recognized and honored by the military courts as well as the civil courts. 13 Petitioners asserted: they had been arrested and confined incommunicado by officers of the military government of Guam; they were mistreated and subjected to continuous questioning without being informed of their rights; petitioner Dennis finally confessed, after police officers confronted him with the confession of Calvin Dennis—an alleged accomplice in the crime; after a period of about three weeks of this confinement, the petitioners were turned over to the Air Force; the military authorities 'planted' real evidence—the victim's smock with hairs from petitioners' body attached—in a truck which petitioners had driven on the night of the crime; they further sought to 'contrive' a conviction by coercing various witnesses to testify against petitioners; both petitioners were denied the benefit of counsel until a short while before trial, and petitioner Dennis was denied representation of his choice when counsel he sought was removed from the case by the commanding officer of his unit; the trial was conducted in an atmosphere of 'hysteria' because the crime had been particularly brutal and the authorities had 'created' a demand for vengeance; the 'coerced' confessions were admitted at the trial and so was the incriminating confession of Calvin Dennis—which had been procured by threats and deceit.10 14 Answering the habeas corpus applications, respondents denied that there had been any violation of petitioners' rights and attached to their answer copies of the record of each trial, the review of the Staff Judge Advocate, the decision of the Board of Review in the office of the Judge Advocate General, the decision (after briefs and oral argument) of the Judicial Council in the Judge Advocate General's office, the recommendation of the Judge Advocate General, the action of the President confirming the sentences, and also the decision of the Judge Advocate General denying petitions for new trials under Article 53 of the Articles of War. 15 These records make it plain that the military courts have heard petitioners out on every significant allegation which they now urge. Accordingly, it is not the duty of the civil courts simply to repeat that process—to re-examine and reweigh each item of evidence of the occurrence of events which tend to prove or disprove one of the allegations in the applications for habeas corpus. It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims. Whelchel v. McDonald, supra. We think they have. 16 The military reviewing courts scrutinized the trial records before rejecting petitioners' contentions. In lengthy opinions, they concluded that petitioners had been accorded a complete opportunity to establish the authenticity of their allegations, and had failed. Thus, the trial records were analyzed to show that the circumstances fully justified the decision to remove Dennis' original choice of defense counsel;11 that each petitioner had declared, at the beginning of his trial, that he was ready to proceed; that each was ably represented; that the trials proceeded in an orderly fashion—with that calm degree of dispassion essential to a fair hearing on the question of guilt; that there was exhaustive inquiry into the background of the confessions—with the taking of testimony from the persons most concerned with the making of these statements, including petitioner Dennis who elected to take the stand.12 And finally it was demonstrated that the issues arising from the charges relating to the use of perjured testimony and planted evidence were either explored or were available for exploration at the trial.13 17 Petitioners have failed to show that this military review was legally inadequate to resolve the claims which they have urged upon the civil courts. They simply demand an opportunity to make a new record, to prove de novo in the District Court precisely the case which they failed to prove in the military courts. We think under the circumstances, that due regard for the limitations on a civil court's power to grant such relief precludes such action. We think that although the Court of Appeals may have erred in reweighing each item of relevant evidence in the trial record, it certainly did not err in holding that there was no need for a further hearing in the District Court. Accordingly its judgment must be affirmed. 18 Affirmed. 19 Mr. Justice JACKSON concurs in the result. 20 Mr. Justice MINTON, concurring in the affirmance of the judgment. 21 I do not agree that the federal civil courts sit to protect the constitutional rights of military defendants, except to the limited extent indicated below. Their rights are committed by the Constitution1 and by Congress acting in pursuance thereof2 to the protection of the military courts, with review in some instances by the President. Nor do we sit to review errors of law committed by military courts. 22 This grant to set up military courts is as distinct as the grant to set up civil courts. Congress has acted to implement both grants. Each hierarchy of courts is distinct from the other. We have no supervisory power over the administration of military justice, such as we have over civil justice in the federal courts. Due process of law for military personnel is what Congress has provided for them in the military hierarchy in courts established according to law. If the court is thus established, its action is not reviewable here. Such military court's jurisdiction is exclusive but for the exceptions contained in the statute, and the civil courts are not mentioned in the exceptions. 64 Stat. 115, 50 U.S.C. (Supp. V) § 581, 50 U.S.C.A. § 581. 23 If error is made by the military courts, to which Congress has committed the protection of the rights of military personnel, that error must be corrected in the military hierarchy of courts provided by Congress. We have but one function, namely, to see that the military court has jurisdiction, not whether it has committed error in the exercise of that jurisdiction. 24 The rule was clearly stated in the early case of In re Grimley, 137 U.S. 147, 150, 11 S.Ct. 54, 34 L.Ed. 636, in these words: 25 'It cannot be doubted that the civil courts may in any case inquire into the jurisdiction of a court-martial, and, if it appears that the party condemned was not amenable to its jurisdiction, may discharge him from the sentence. And, on the other hand, it is equally clear that by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial, and that no mere errors in their proceedings are open to consideration. The single inquiry, the test, is jurisdiction. * * *' 26 This case was cited and an excerpt from the above quoted with approval in Hiatt v. Brown, 339 U.S. 103, 111, 70 S.Ct. 495, 499, 94 L.Ed. 691. After approving In re Grimley, we rejected the broader claim of the respondent for review to determine whether certain action of the military court had denied him due process of law and said: 27 'In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision. * * *' 28 With this understanding, I concur in affirming the judgment. 29 Mr. Justice FRANKFURTER. 30 This case raises questions of great delicacy and difficulty. On the one hand is proper regard for habeas corpus, 'the great writ of liberty'; on the other hand the duty of civil courts to abstain from intervening in matters constitutionally committed to military justice. The case comes to us on a division of opinion in the Court of Appeals. In the interest of enabling indigent litigants to have the case reviewed in this Court without incurring the enormous cost of printing, we have required to be brought here only one copy of a record consisting of a mass of materials in their original form. Consideration of the case has fallen at the close of the Term. Obviously it has not been possible for every member of the Court to examine such a record. In any event there has not been time for its consideration by me. An examination of it, however, is imperative in view of what seem to me to be the essential issues to be canvassed. I can now only outline the legal issues that are implicit in the case. 31 The right to invoke habeas corpus to secure freedom is not to be confined by any a priori or technical notions of 'jurisdiction.' See my dissent in Sunal v. Large, 332 U.S. 174, 184, 67 S.Ct. 1588, 1593, 91 L.Ed. 1982. And so, if imprisonment is the result of a denial of due process, it may be challenged no matter under what authority of Government it was brought about. Congress itself in the exercise of the war power 'is subject to applicable constitutional limitations.' Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194. It is therefore not freed from the requirements of due process of the Fifth Amendment. But there is no table of weights and measures for ascertaining what constitutes due process. Indeed, it was common ground, in the majority and dissenting opinions below, that due process, in the language of Judge Bazelon, is not 'the same in a military setting as it is in a civil setting.' 202 F.2d at page 352. 32 I cannot agree that the only inquiry that is open on an application for habeas corpus challenging a sentence of a military tribunal is whether that tribunal was legally constituted and had jurisdiction, technically speaking, over the person and the crime. Again, I cannot agree that the scope of inquiry is the same as that open to us on review of State convictions; the content of due process in civil trials does not control what is due process in military trials. Nor is the duty of the civil courts upon habeas corpus met simply when it is found that the military sentence has been reviewed by the military hierarchy, although in a debatable situation we should no doubt attach more weight to the conclusions reached on controversial facts by military appellate courts than to those reached by the highest court of a State. 33 In the light of these considerations I cannot assume the responsibility, where life is at stake, of concurring in the judgment of the Court. Equally, however, I would not feel justified in reversing the judgment. My duty, as I see it, is to resolve the dilemma by doing neither. It is my view that this is not just a case involving individuals. Issues of far-reaching import are at stake which call for further consideration. They were not explored in all their significance in the submissions made to the Court. While this case arose prior to the new Code of Military Justice, 64 Stat. 107, it necessarily will have a strong bearing upon the relations of the civil courts to the new Court of Military Appeals. The short of it is that I believe this case should be set down for reargument.* 34 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 35 The charges which are made concerning the confessions exacted from these accused are quite lurid. But the basic, undisputed facts, though not dramatic, leave the clear impression that one of the petitioners was held incommunicado and repeatedly examined over a 5-day period until he confessed. 36 Herman Dennis.—On January 7, 1949, Herman Dennis was taken into custody by the civil authorities. (At this time Guam was under a government supervised by the Navy.) He was asked or told to give consent to take a lie detector test. He was given the test and thereafter confined. Instructions were issued that he was to talk to no one except the two investigators, one the Assistant Chief of Police of Guam, and the other a member of the Berkeley, California, police department who had been called in to assist in the solution of the crime. Dennis was questioned intermitently by these two officers from Friday, January 7, until Tuesday, January 11. On the latter date he was informed that his 'half-brother,' Calvin Dennis, had confessed. He refused to believe it. Calvin was brought before him and asked if he had confessed. Calvin answered 'yes' and was immediately taken away. 37 During the evening of January 11, Herman agreed to confess and executed two hand-written notes. The investigators left him alone at about midnight. The next morning he was taken to an office and in the presence of several officers, he made a confession which was typed and signed by Herman on each page. He made another such statement the next day, January 13, 1949. Later he repudiated all his confessions. 38 He was taken before a magistrate on January 17, 1949, and turned over to the military authorities on January 29, 1949. He was formally charged with rape and murder on February 1, 1949, and tried by general court-martial from May 9 to May 16, 1949. The confessions were introduced over objection by the defense. Herman took the stand and testified that they were involuntary and untruthful. The trial resulted in conviction and sentence of death. 39 Robert Burns.—This defendant was taken into custody by the civil authorities on January 7, 1949. He was turned over to the military on January 30, 1949. He did not confess. He was formally charged with rape and murder on February 20, 1949, and was tried by general court-martial from May 27, 1949 to May 30, 1949. Calvin Dennis testified against him. It appears that calvin had previously been tried and convicted of the same crimes and sentenced to death. His sentence was later commuted to life imprisonment by the President. 40 Those are the undisputed facts concerning the confessions. 41 The role of Calvin Dennis is not too clear; and he is not a petitioner here. But it appears that he was arrested at the same time as the others and confessed some time between Friday, January 7 and Tuesday, January 11. His affidavit attached to the petition below alleges that he was beaten and forced to confess and that the authorities promised him money had a light sentence if he would implicate the others. He says that his testimony at the Burns trial was false and given under duress. Both he and Herman now state that they are not half-brothers and are in fact in no way related. 42 I think petitioners are entitled to a judicial hearing on the circumstances surrounding their confessions. 43 Congress has power by Art. I, § 8, cl. 14 of the Constitution 'To make Rules for the Government and Regulation of the land and naval Forces'. The rules which Congress has made relative to trials for offenses by military personnel are contained in the Uniform Code of Military Justice. 64 Stat. 108, 50 U.S.C. § 551 et seq., 50 U.S.C.A. § 551 et seq. Those rules do not provide for judicial review. But it is clear from our decisions that habeas corpus may be used to review some aspects of a military trial. 44 The question whether the military tribunal has exceeded the powers granted it by Congress may be tested by habeas corpus. See Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691; Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146. But it is also clear that that review is not limited to questions of 'jurisdiction' in the historic sense. 45 Of course the military tribunals are not governed by the procedure for trials prescribed in the Fifth and Sixth Amendments. That is the meaning of Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3, holding that indictment by grand jury and trial by jury are not constitutional requirements for trials before military commissions. Nor do the courts sit in review of the weight of the evidence before the military tribunal. Whelchel v. McDonald, supra, 340 U.S. at page 124, 71 S.Ct. 147. But never have we held that all the rights covered by the Fifth and the Sixth Amendments were abrogated by Art. I, § 8, cl. 14 of the Constitution, empowering Congress to make rules for the armed forces. I think it plain from the text of the Fifth Amendment that that position is untenable. The Fifth Amendment provides: 46 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' 47 What reason is there for making one specific exception for cases arising in the land or naval forces or in the militia if none of the Fifth Amendment is applicable to military trials? Since the requirement for indictment before trial is the only provision of the Fifth Amendment made inapplicable to military trials, it seems to me clear that the other relevant requirements of the Fifth Amendment (including the ban on coerced confessions) are applicable to them. And if the ban on coerced confessions is applicable, how can it mean one thing in civil trials and another in military trials? 48 The prohibition against double jeopardy is one of those provisions. And consistently with the construction I urge, we held in Wade v. Hunter, 336 U.S. 684, 690, 69 S.Ct. 834, 837, 93 L.Ed. 974, that courtmartial action was subject to that requirement of the Fifth Amendment. The mandates that no person be compelled to be a witness against himself or be deprived of life or liberty without due process of law are as specific and as clear. They too, as the Court of Appeals held, are constitutional requirements binding on military tribunals. 49 If a prisoner is coerced by torture or other methods to give the evidence against him, if he is beaten or slowly 'broken' by third-degree methods, then the 'trial' before the military tribunal becomes an empty ritual. The real trial takes place in secret where the accused without benefit of counsel succumbs to physical or psychological pressures. A solider or sailor convicted in that manner has been denied due process of law; and, like the accused in criminal cases, see Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309, he should have relief by way of habeas corpus. 50 The opinion of the Court is not necessarily opposed to this view. But the Court gives binding effect to the ruling of the military tribunal on the constitutional question, provided it has given fair consideration to it. 51 If the military agency has fairly and conscientiously applied the standards of due process formulated by this Court, I would agree that a rehash of the same facts by a federal court would not advance the cause of justice. But where the military reviewing agency has not done that, a court should entertain the petition for habeas corpus. In the first place, the military tribunals in question are federal agencies subject to no other judicial supervision except what is afforded by the federal courts. In the second place, the rules of due process which they apply are constitutional rules which we, not they, formulate. 52 The undisputed facts in this case make a prima facie case that our rule on coerced confessions expressed in Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801, was violated here. No court has considered the question whether repetitious questioning over a period of 5 days while the accused was held incommunicado without benefit of counsel violated the Fifth Amendment. The highest reviewing officer, the Judge Advocate General of the Air Force, said only this: 53 'After reading and re-reading the record of trial, there is no reasonable doubt in my mind that all the confessions were wholly voluntary, as the court decided, and were properly admitted. Where the evidence as to whether there was coercion is conflicting, or where different inferences may fairly be drawn from the admitted facts, the question whether a confession was voluntary is for the triers of the facts (Lyons v. Oklahoma, 322 U.S. 596 (64 S.Ct. 1208, 88 L.Ed. 1481); Lisenba v. California, 314 U.S. 219 (62 S.Ct. 280, 86 L.Ed. 166)). Thus the court's decision on the voluntary nature of the testimony, arrived at from first-hand hearing and observation, is presumptively correct and will not be disturbed unless manifestly erroneous (MGM Corporation v. Fear (9 Cir.), 104 F.2d 892; ACM 3597, Maddle, 4 Court-Martial Reports (AF) 573).' 54 There has been at no time any considered appraisal of the facts surrounding these confessions in light of our opinions. Before these men go to their death, such an appraisal should be made. 1 28 U.S.C. § 2241, 28 U.S.C.A. § 2241. See In re Yamashita, 1946, 327 U.S. 1, 8, 66 S.Ct. 340, 344, 90 L.Ed. 499. 2 See Dynes v. Hoover, 1858, 20 How. 65, 85, 15 L.Ed. 838; cf. In re Vidal, 1900, 179 U.S. 126, 129, 21 S.Ct. 48, 45 L.Ed. 118; Reaves v. Ainsworth, 1911, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; Ex parte Quirin, 1942, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3. 3 See, e.g., In re Grimley, 1890, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636; Hiatt v. Brown, 1950, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691. 4 See 62 Stat. 627 (revised Articles of War), 64 Stat. 107 (the Uniform Code of Military Justice). For history of the evolution and purpose behind these enactments see, e.g., H.R.Rep.No. 1034, 80th Cong., 1st Sess.; S.Rep.No.1268, 80th Cong., 2d Sess.; Report of the War Department Advisory Committee on Military Justice (1946); H.R.Rep.No. 491, 81st Cong., 1st Sess.; S.Rep.No. 486, 81st Cong., 1st Sess. 5 Ibid. See Holtzoff, Administration of Justice in the United States Army, 22 N.Y.U.L.Q.Rev. 1 (1947); Morgan, The Background of The Uniform Code of Military Justice, 6 Vand.L.Rev. 169 (1953). 6 For provisions to this effect in the revised Articles of War, see, e.g., 10 U.S.C. (Supp. II) §§ 1482, 1493, 1495, 1542, 1560. For provisions in the Uniform Code of Military Justice, see, e.g., 50 U.S.C. (Supp. V) §§ 564, 567, 591, 602, 612, 621, 50 U.S.C.A. §§ 564, 567, 591, 602, 612, 621. 7 10 U.S.C. (Supp. II) § 1521. The Uniform Code of Military Justice established the Court of Military Appeals, which is composed of civilians. It automatically reviews all capital cases and has discretionary jurisdiction over other cases. It is the highest court in the military system. 50 U.S.C. (Supp. V) § 654, 50 U.S.C.A. § 654. See Walker and Niebank, bank, The Court of Military Appeals—Its History, Organization and Operation, 6 Vand.L.Rev. 228 (1953). 8 62 Stat. 639, 10 U.S.C. (Supp. III) § 1525. See Gusik v. Schilder, 1950, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146. This provision was also made a part of the Uniform Code of Military Justice. 64 Stat. 132, 50 U.S.C. (Supp. V) § 660, 50 U.S.C.A. § 660; 64 Stat. 147, 50 U.S.C. (Supp. V) § 740, 50 U.S.C.A. § 740. 9 The revisions of the Articles of War, 10 U.S.C. (Supp. II) § 1521(h), and the Uniform Code of Military Justice, 50 U.S.C. (Supp. V) § 663, 50 U.S.C.A. § 663, both provided that the decisions of the appellate military tribunals should be 'final' and should be 'binding' upon the courts. 10 Petitioners submitted the affidavits of petitioner Dennis, an Air Force chaplain, a fomer federal civilian employee on Guam and Col. Daly, a former Air Force officer who had been attached to the Judge Advocate's staff on Guam, and who was, apparently, originally to have been defense counsel to the accused. These affidavits tended to back up the general allegations set forth in the applications for habeas corpus. 11 See Hiatt v. Brown, 1950, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691. Dennis asked to be represented by one Lt. Col. Daly. This officer, prior to the trial, was charged with serious misconduct and moral turpitude. When informed of this, Dennis announced his satisfaction with the 'regularly appointed defense counsel.' At his trial, however, Dennis again asked if Daly could assist in his defense. The court was then fully informed concerning Daly's arrest and his dubious status, and it sustained the commanding officer's determination that Daly was not 'available' to participate in the trial. Dennis was represented by another officer who had been appointed a full month before. Defense counsel was assisted by two other legal officers who had also participated in the pretrial investigation of the case. 12 We reject petitioners' contentions that the rule of McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, renders the confessions inadmissible and requires the civil courts to hold that the courts-martial were void. The McNabb rule is a rule of evidence in the federal civil courts; its source is not 'due process of law', but this Court's power of 'supervision of the administration of criminal justice in the federal courts'; see 318 U.S. at page 340, 63 S.Ct. at page 613, cf. Gallegos v. Nebraska, 1951, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86; and we have of course no such supervisory power over the admissibility of evidence in courts-martial. 13 The allegations in the applications for habeas corpus relating to perjured and 'planted' evidence were supported by the affidavits of Col. Daly and Mrs. Hill, the federal civilian employee. But they were both witnesses for the defense at the Dennis trial, and Daly was a witness for the prosecution in the Burns trial. Many of the matters covered in the Daly and Hill affidavits were covered at the trial; opportunity was available to question each witness about his or her relationship with the investigation of the case. Moreover we note that the Judge Advocate General, during review of this case under former Article of War 53 (now 50 U.S.C. (Supp. V) § 740, 50 U.S.C.A. § 740), ordered a special investigation by the office of the Inspector General of some of the Daly and Hill charges, and concluded that they were unfounded. This report is not a part of the record, and we cannot rely upon it to sustain our conclusions, but we can cite it as an example of the efforts of the military to resolve and not ignore petitioners' charges. 1 Art. I, § 8, cl. 14. 2 This particular case comes up under the former Revised Articles of War, 62 Stat. 627, now supplanted by the Uniform Code of Military Justice, 64 Stat. 107, 50 U.S.C. (Supp. V) § 551 et seq., 50 U.S.C.A. § 551 et seq. * See also further opinion of Mr. Justice Frankfurter, 346 U.S. p. 844, 74 S.Ct. 3.
01
346 U.S. 209 73 S.Ct. 1055 97 L.Ed. 1557 BRIDGES et al.v.UNITED STATES. No. 548. Argued May 4, 1953. Decided June 15, 1953. [Syllabus from pages 209-210 intentionally omitted] Mr. Telford Taylor, Washington, D.C., for petitioners. Mr. John F. Davis, Washington, D.C., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 In this proceeding we are limited to the consideration of the following questions: (1) is it barred by the statute of limitations and, if not, (2) is it barred by the principles of res judicata, or estoppel, or the Due Process Clause of the Fifth Amendment? For the reasons hereafter stated we hold that it is barred by the statute of limitations. We do not reach or discuss the second question. 2 The issues raised by the first question are: 3 1. Whether the Wartime Suspension of Limitations Act1 has suspended the running of the general three-year statute of limitations2 in relation to the offenses charged in— 4 Count I, under the general conspiracy statute;3 5 Count II, under § 346(a)(1) of the Nationality Act of 1940;4 or 6 Count III, under § 346(a)(5) of the Nationality Act of 1940;5 and 7 2. Whether the saving clause in § 21 of the Act of June 25, 1948, which enacted the present Criminal Code into law,6 continued in effect the special five-year statute of limitations of § 346(g) of the Nationality Act of 19407 in relation to violations of § 346(a) of that Act. 8 For the reasons set forth, we reach a negative conclusion on each of the above issues. 9 Petitioner Harry Bridges entered the United States in 1920 as an immigrant seaman from Austalia. Subsequently, he defeated two attempts of the United States to deport him because of his alleged Communist Party membership or affiliation. The second such attempt culminated June 18, 1945, in Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103. 10 June 23, 1945, he applied, in the San Francisco office of the Immigration and Naturalization Service, for a Certificate of Arrival and a Preliminary Form for Petition for Naturalization. August 8, he appeared, with petitioners Schmidt and Robertson, before an examiner for a preliminary examination. Each of the three testified that Bridges was not a member of the Communist Party. 11 September 17, 1945, Bridges appeared in the Superior Court in San Francisco for the naturalization hearing. Schmidt and Robertson testified that they had known Bridges for five years or longer, that he was a resident of the United States during that time and that they vouched for his loyalty to the United States. Bridges gave the following answers under oath: 12 'Q. Do you now, or have you ever, belonged to any organization that advocated the overthrow of the government by force or violence? A. No. 13 'Q. Do you now, or have you ever, belonged to the Communist Party in the United States? A. I have not, I do not.' 14 He was then admitted to citizenship. 15 May 25, 1949, more than three years later, a grand jury in the United States District Court for the Northern District of California returned the present indictment in three counts. 16 Count I charges the three petitioners with a conspiracy to defraud the United States by impairing, obstructing and defeating the proper administration of its naturalization laws by having Bridges fraudulently petition for and obtain naturalization by falsely and fraudulently stating to the naturalization court that he had never belonged to the Communist Party in the United States, and that such statement was known at all times by each of the petitioners to be false and fraudulent. The appearance and testimony of the petitioners in the naturalization proceeding were alleged as the overt acts in the conspiracy. 17 That count is laid under the following general conspiracy statute: 18 'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both.' § 37 of the old Criminal Code, 35 Stat. 1096, 18 U.S.C. § 88, now 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371. 19 Count II charges Bridges with wilfully and knowingly making a false statement under oath in the naturalization proceeding when he testified that he was not and had not been a member of the Communist Party. Count II is laid under § 346(a)(1) of the Nationality Act of 1940, 54 Stat. 1163, 8 U.S.C. § 746(a)(1), which makes it a felony for any person— 20 'Knowingly to make a false statement under oath, either orally or in writing, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization or citizenship.'8 21 Count III charges Schmidt and Robertson with wilfully and knowingly aiding Bridges, who was not entitled thereto, to obtain a Certificate of Naturalization which was to be procured by false and fraudulent statements. It avers that they knew that Bridges was a member of the Communist Party and that he had made false and fraudulent representations in the naturalization proceeding. Count III is laid under § 346(a)(5) of the Nationality Act of 1940, 54 Stat. 1164, 8 U.S.C. § 746(a)(5), which makes it a felony— 22 'To encourage, aid, advise, or assist any person not entitled thereto to obtain, accept, or receive any certificate of arrival, declaration of intention, certificate of naturalization, or certificate of citizenship, or other documentary evidence of naturalization or of citizenship— 23 'a. Knowing the same to have been procured by fraud; * * *.'9 24 Petitioners each moved to dismiss the indictment on the ground, inter alia, that each count was barred by the statute of limitations. The motions were denied. D.C., 86 F.Supp. 922. The trial resulted in a jury verdict of guilty on each count. Bridges received concurrent sentences of imprisonment for two years on Count I and five years on Count II. The other petitioners each received concurrent sentences of imprisonment for two years on each of Counts I and III. The Court of Appeals affirmed. 9 Cir., 199 F.2d 811. Rehearing en banc was denied. 9 Cir., 201 F.2d 254. Because of an indicated conflict between that decision and part of the decision in Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, affirmed by an equally divided Court, 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431, 336 U.S. 922, 69 S.Ct. 513, 93 L.Ed. 1075, as well as its conflict in part with United States v. Obermeier, 2 Cir., 186 F.2d 243, and because of the importance of the issues, we granted certiorari, 345 U.S. 904, 73 S.Ct. 648.10 25 The acts charged occurred in 1945. Accordingly, unless the general three-year statute of limitations is suspended or superseded, the indictment, found in 1949, was out of time and must be dismissed.11 26 A. The suspension prescribed by the Wartime Suspension of Limitations Act applies to offenses involving the defrauding of the United States or any agency thereof, whether by conspiracy or not, and in any manner, but only where the fraud is of a pecuniary nature or at least of a nature concerning property. 27 The Wartime Suspension of Limitations Act creates an exception to a longstanding congressional 'policy of repose' that is fundamental to our society and our criminal law. From 1790 to 1876, the general limitation applicable to noncapital offenses was two years and since then it has been three years.12 In relation to a comparable exception stated in § 1110(a) as the limitation applicable under the Revenue Act of 1926,13 Mr. Justice Roberts, speaking for the Court, said: 28 'Moreover, the concluding clause of the section, though denominated a proviso, is an excepting clause, and therefore to be narrowly construed. United States v. McElvain, 272 U.S. 633, 639, 47 S.Ct. 219, 71 L.Ed. 451.14 And, as the section has to do with statutory crimes, it is to be liberally interpreted in favor of repose, and ought not to be extended by construction to embrace so-called frauds not so denominated by the statutes creating offenses.' United States v. Scharton, 285 U.S. 518, 521—522, 52 S.Ct. 416, 417, 76 L.Ed. 917. 29 The legislative history of this exception emphasizes the propriety of its conservative interpretation. It indicates a purpose to suspend the general statute of limitations only as to war frauds of a pecuniary nature or of a nature concerning property. It nowhere suggests a purpose to swallow up the three-year limitation to the extent necessary to reach the offenses before us. 30 The present Suspension Act had its origin in the Act of August 24, 1942.15 See United States v. Smith, 342 U.S. 225, 226 227, 72 S.Ct. 260, 261, 96 L.Ed. 252. That Act was a wartime measure reviving for World War II substantially the same exception to the general statute of limitations which, from 1921 to 1927, had been directed at the war frauds of World War I.16 The Committee Reports show that in 1921 Congress aimed the proviso at the pecuniary frauds growing out of war contracts.17 Congress was concerned with the exceptional opportunities to defraud the United States that were inherent in its gigantic and hastily organized procurement program. It sought to help safeguard the treasury from such frauds by increasing the time allowed for their discovery and prosecution. In 1942, the reports and proceedings demonstrate a like purpose, coupled with a design to readopt the World War I policy.18 31 This interpretation of the scope of the 1942 provision was expressly approved in Marzani v. United States, 83 U.S.App.D.C. 78 82, 168 F.2d 133—137. As to nine counts based upon the amended False Claims Act, 18 U.S.C.A. § 287, the Court of Appeals for the District of Columbia Circuit held that the 1942 Wartime Suspension of Limitations Act did not suspend the three-year statute of limitations. Those counts charged that false statements had been made to government agencies in relation to Communist Party membership, in connection with an application for a position in the government service. Referring to United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598, the Court of Appeals said: 32 'Thus, the (Supreme) Court held that defrauding the United States in a pecuniary or financial sense is not a constituent ingredient of offenses under the False Claims Act. 33 'It necessarily follows, in our view, that the Suspension Act does not apply to offenses under the False Claims Act. The Supreme Court has clearly said (1) that a statute identical in pertinent part with the Suspension Act does not apply to offenses of which defrauding the United States in a pecuniary way is not an essential ingredient; and (2) that such defrauding of the United States is not an essential ingredient of offenses under the False Claims statute.' 83 U.S.App.D.C., at page 81, 168 F.2d, at page 136. 34 Brought here on several issues, including dismissal of the nine counts, that case was twice affirmed, without opinion, by an evenly divided Court. 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431, 336 U.S. 922, 69 S.Ct. 513, 93 L.Ed. 1075. See also, United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616.19 35 As the offenses here charged are those of knowingly making a false statement under oath in a proceeding relating to naturalization (Count II), or of conspiring to have someone do so (Count I), or of aiding someone to obtain a Certificate of Naturalization knowing it to be procured by fraud (Count III), none of them involve the defrauding of the United States in any pecuniary manner or in a manner concerning property. We accordingly hold that, for that reason, the Wartime Suspension of Limitations Act does not apply to those offenses. 36 B. A further ground for our conclusion is that this Court already has interpreted the language before us, or similar language in comparable Acts, to mean that the wartime suspension of limitations authorized by Congress is limited strictly to offenses in which defrauding or attempting to defraud the United States is an essential ingredient of the offense charged. Decisions of this Court, made prior to 1942, had so interpreted the earlier legislation that its substantial reenactment, in 1942, carried with it the interpretation above stated. United States v. Scharton, 285 U.S. 518, 52 S.Ct. 416, 76 L.Ed. 917; United States v. McElvain, 272 U.S. 633, 47 S.Ct. 219, 71 L.Ed. 451; United States v. Noveck, 271 U.S. 201, 46 S.Ct. 476, 70 L.Ed. 904. See also, Braverman v. United States, 317 U.S. 49, 54—55, 63 S.Ct. 99, 102, 87 L.Ed. 23, and United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616. 37 The simplest demonstration of this point appears in Count II. The offense there charged is that Bridges knowingly made a false material statement in a naturalization proceeding. In that offense, as in the comparable offense of perjury, fraud is not an essential ingredient. The offense is complete without proof of fraud, although fraud often accompanies it. The above-cited cases show that even though the offense may be committed in a pecuniary transaction involving a financial loss to the Government, that fact, alone, is not enough to suspend the running of the three-year statute of limitations. Under the doctrine of these cases, the suspension does not apply to the offense charged unless, under the statute creating the offense, fraud is an essential ingredient of it. The purpose of the Wartime Suspension of Limitations Act is not that of generally suspending the three-year statute, e.g., in cases of perjury, larceny and like crimes. It seeks to suspend the running of it only where fraud against the Government is an essential ingredient of the crime. In view of the opportunity to commit such frauds in time of war, and in view of the difficulty of their prompt discovery and prosecution, the Government seeks extra time to deal with them. Nothing in § 346(a)(1) makes fraud an essential ingredient of the offense of making a false material statement under oath in a naturalization proceeding. 38 Likewise, in Count III, the aiding of someone to commit that offense, in violation of § 346(a)(5), does not require proof of fraud as an essential ingredient. If, as here, the main offense is complete with the proof of perjury, the suspension does not apply to the charge of aiding in the commission of that offense. The insertion in the indictment of the words 'procured by fraud' does not change the offense charged. The embellishment of the indictment does not lengthen the time for prosecution. It is the statutory definition of the offense that determines whether or not the statute of limitations comes within the Suspension Act. 39 So it is with Count I. A charge of conspiracy to commit a certain substantive offense is not entitled to a longer statute of limitation than the charge of committing the offense itself. There is no additional time prescribed for indictments for conspiracies as such. The insertion of surplus words in the indictment does not change the nature of the offense charged. 40 'The language of the proviso cannot reasonably be read to include all conspiracies defined by section 37. (The general conspiracy section of the old Criminal Code, now 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371.) But if the proviso could be construed to include any conspiracies, obviously it would be limited to those to commit the substantive offenses which it covers.' United States v. McElvain, 272 U.S. 633, 639, 47 S.Ct. 219, 220, 71 L.Ed. 451. 41 The Government contends that the General Conspiracy Act20 under which Count I is laid comprises two classes of conspiracies: (1) 'to commit any offense against the United States' and (2) 'to defraud the United States in any manner or for any purpose'. It urges that the indictment here charges a conspiracy to defraud the United States under the second clause. It suggests that, under that clause, proof of a specific intent to defraud is an essential ingredient of the offense and thus brings Count I within the Suspension Act. The fallacy in that argument is that, while the indictment may be framed in the language of the second clause, both it and the proof to support it rely solely on the fact of a conspiracy to commit the substantive offenses violating § 346(a)(1) or s 346(a)(5) as charged in Counts II and III. Count I actually charges that petitioner conspired to 'defraud the United States' only by causing the commission of the identical offenses charged in Counts II and III. The use in Count I of language copied from the second clause of the conspiracy statute merely cloaks a factual charge of conspiring to cause, or knowingly to aid, Bridges to make a false statement under oath in his naturalization proceeding, or to obtain by false statements a Certificate of Naturalization to which he was not entitled. 42 The Court of Appeals in Marzani v. United States, supra, was convinced that the Suspension Act did not apply to such offenses, as those here involved, under the False Claims Act, no matter what words descriptive of fraud were added to the indictment, so long as fraud was not an essential ingredient of the offense defined in the statute. Another Court of Appeals arrived at a like conclusion in United States v. Obermeier, 2 Cir., 186 F.2d 243, 256—257, with respect to offenses under the statute involved in Count II of the instant indictment. 43 II. The saving clause in § 21 of the Act of June 25, 1948, does not 'save' the special five-year statute of limitations of the National Act of 1940 so as to apply it to the violations of that Act charged in Counts II and III. 44 The Government contends, alternatively, that the indictment, which was found May 25, 1949, was timely as to Counts II and III, even if the Suspension Act is not applicable to this indictment. Its alternative contention is that those counts respectively charge violations of § 346(a)(1) and (5) of the Nationality Act of 1940 which occurred in 1945 and that the indictment for them was found within the special five-year limitation of § 346(g) of that Act.21 It appears, however, that § 346(a—h) was expressly repealed, as of September 1, 1948, by § 21 of the Act of June 25, 1948, which enacted the new Criminal Code into law. Including its controversial saving clause, that repealing section reads as follows: 45 'Sec. 21. The sections or parts thereof of the Revised Statutes or Statutes at Large enumerated in the following schedule are hereby repealed.22 Any rights or liabilities now existing under such sections or parts thereof shall not be affected by this repeal.' 62 Stat. 862. 46 By such repeal of § 346(g), the general three-year statute of limitations became applicable. 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282.23 Three years having expired before the indictment was found, § 3282 bars the instant indictment. The Government, however, contends that the abovequoted saving clause in § 21 refers not only to substantive liabilities but also to the period during which a crime may be prosecuted and thus includes the special five-year limitation contained in § 346(g). This issue was presented to the Court of Appeals in the instant case and was decided against the Government. 9 Cir., 199 F.2d 811, 819—820. In doing so, the court relied in part upon a like conclusion of the Court of Appeals for the Second Circuit in United States v. Obermeier, supra. That case related to an indictment in two counts for knowingly making, in 1945, in a naturalization proceeding, as here, false statements under oath in relation to membership in the Communist Party. The review of legislative materials and court decisions made there need not be repeated here in reaching the same result—that the saving clause in § 21 did not keep the special five-year limitation alive after September 1, 1948.24 47 The purpose of Congress to substitute the general three-year limitation in place of the special five-year limitation is indicated in the Reviser's Note to 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282 which says: 48 'In the consolidation of these sections the 5-year period of limitation for violations of the Nationality Code, provided for in said section 746(g) of Title 8, U.S.C., 1940 ed., Aliens and Nationality, is reduced to 3 years. There seemed no sound basis for considering 3 years adequate in the case of heinous felonies and gross frauds against the United States but inadequate for misuse of a passport or false statement to a naturalization examiner.' 49 To adopt the interpretation proposed by the Government would produce the situation that offenses committed in August, 1948, would be indictable until August, 1953, where as like offenses committed in the following October, 1948, would not be indictable after October, 1951. The longer period for the prosecution of the earlier offenses has no relation to war conditions. Such a result is not to be inferred without a clear direction to that effect. 50 Finally, to interpret the words 'rights or liabilities' in the saving clause as including such procedural incidents as the period within which indictments may be found would overlook the practice of Congress to specify the saving of such limitations expressly when and if Congress wished them to be 'saved.' In the Revised Statutes of 1874, § 5598 preserved 'All offenses committed, and all penalties and forfeitures' but, nevertheless, § 5599 was inserted to add 'All acts of limitation, whether applicable to civil causes and proceedings, or to the prosecution of offenses, or for the recovery of penalties or forfeitures * * *.'25 The 1909 Criminal Code contained similar provisions in §§ 343 and 344. 35 Stat. 1159. In 1933, when the Revised Statutes were reexamined and obsolete sections, including § 5598, were repealed, § 5599 was retained. 47 Stat. 1431. The reason then given for its retention was that the survival clause in the general repealing statute, 47 Stat. 1431, referred 'only to 'rights' and 'liabilities' and not to remedies, recourse to which may be barred by limitation.' S.Rep. No. 1205, 72d Cong., 2d Sess. 3. See Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483. 51 As the general three-year statute of limitations is applicable to each of the offenses charged and has been neither suspended by the Wartime Suspension of Limitations Act, nor made inapplicable by § 21 of the Act of June 25, 1948, the indictment in this proceeding came too late to be effective. The motion to dismiss it should have been granted when first made. The judgment of the Court of Appeals, accordingly, is reversed and the cause is remanded to the District Court with direction to dismiss the indictment. 52 Reversed and remanded. 53 Mr. Justice JACKSON and Mr. Justice CLARK took no part in the consideration or decision of this case. 54 Mr. Justice REED, with whom The CHIEF JUSTICE and Mr. Justice MINTON join, dissenting. 55 The limitation for prosecutions under the second clause of 18 U.S.C. § 371, 18 U.S.C.A. § 371, conspiracy to defraud the United States, formerly fixed at three years by 18 U.S.C. § 3282, 18 U.S.C.A. § 3282, limitation for offenses not capital, is suspended for us by the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287, 18 U.S.C.A. § 3287. The Code sections so far as applicable appear below.1 As stated in the Court's opinion the indictment under § 371 was brought more than three years after the alleged offense but within time if the wartime suspension applies. The applicability of that section, § 3287, depends upon whether the conspiracy charged in the indictment was an offense 'involving fraud * * * against the United States * * * in any manner, whether by conspiracy or not,' within the meaning of said § 3287. 56 An indictment under § 371 may be found for conspiracy to commit any offense against the United States, or to defraud the United States. These are alternative, disjunctive provisions. One addresses itself to the conspiracy to commit substantive offenses specified under other statutes; the other to a conspiracy to defraud the United States. Such a conspiracy is itself the substantive offense charged in the indictment. This construction has been accepted by the courts without variation.2 57 The indictment, Count I, charges conspiracy 'to defraud the United States by impairing, obstructing, and defeating the proper administration of its naturalization laws' by causing Bridges falsely and fraudulently to state that he 'had never belonged to the Communist Party in the United States.' We think that this alleged offense, since it is an effort to defraud the United States by impairing or obstructing or defeating its naturalization laws obviously falls within the terms of the suspension of limitations, § 3287, 'involving fraud' 'by conspiracy.' 58 We see nothing in the legislative history of § 3287 to raise a question as to its applicability to this indictment. The opinion of the Court quotes excerpts from reports concerning the need of suspension of limitation following the First World War. A statute was then passed, which we accept as having been enacted for the same purpose and with the same coverage as the present legislation. See n. 15 of the Court's opinion. Those reports do show that war frauds of a pecuniary nature were uppermost in the minds of Congress. Court's opinion, n. 17. This was only natural in view of the haste and waste of war but it does not follow logically that frauds against the proper exercise of governmental functions are excluded. The cited excerpts do not specifically exclude them. Certainly frauds impairing, obstructing or defeating selective service,3 alien property,4 administration of prices and wages5 and the allotment of scarce material,6 as well as the Immigration and Nationality Act, would hardly be omitted knowingly by Congress from a suspension of limitation for frauds against the Government. Yet, many of these would fall under the Court's interpretation that wartime suspension applies only to war frauds of a pecuniary nature or of a nature concerning property. It was as hard, perhaps harder, to find and punish frauds against administration as those of a pecuniary or property nature. A general amnesty bill against war frauds would be fairer than to hold only those guilty of financial frauds. Both the purpose and the language of the Suspension Act lead to the conclusion that frauds against administration are within its scope. 59 The Court asserts that the Wartime Suspension Act should be limited to those frauds of a pecuniary or property nature because the Act is an exception to a 'long standing congressional 'policy of repose." Of course, statutes of limitation are statutes of repose. But our public policy is fixed by Congress, not the courts.7 The public policy on repose for wartime frauds is fixed by the Suspension Act and it is the words of that Act that determine our policy, not some general feeling that litigation over frauds should end. 60 Nor can we accept the Court's reliance on Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, 137, as a sound precedent for construing the WartimeSuspension of Limitations Act to apply only to frauds of a pecuniary or property nature. On review this Court was evenly divided. The Court of Appeals held that the Wartime Suspension Act did not apply because '(t)he Supreme Court has clearly said (1) that a statute identical in pertinent part with the Suspension Act does not apply to offenses of which defrauding the United States in a pecuniary way is not an essential ingredient; and (2) that such defrauding of the United States is not an essential ingredient of offenses under the False Claims statute.' 168 F.2d at page 136. Marzani was indicted under the False Claims Act.8 61 The cases relied upon for the first point are United States v. Noveck, 271 U.S. 201, 46 S.Ct. 476, 70 L.Ed. 904; United States v. McElvain, 272 U.S. 633, 47 S.Ct. 219, 71 L.Ed. 451, and United States v. Scharton, 285 U.S. 518, 52 S.Ct. 416, 76 L.Ed. 917. Noveck's case held an indictment for perjury in an income tax return was barred, despite a suspension statute much like § 3287, because fraud was not an element of the crime of perjury. McElvain's case held similarly as to the substantive offense of a willful attempt to evade a tax. Scharton's case followed Noveck and held that fraud on the United States was not an ingredient of evading a tax by false statements. 62 Under the second point, the Court of Appeals relied upon United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598. There this Court held that the 1934 Amendment to Criminal Code § 35, 48 Stat. 996, enlarged § 35 so as to include false representations in any documents 'within the jurisdiction of any department or agency of the United States.' 312 U.S., at page 90, 61 S.Ct. at page 521. Thus the former holding of this Court that the False Claims Act was restricted to 'pecuniary or property loss', United States v. Cohn, 270 U.S. 339, 346, 46 S.Ct. 251, 253, 70 L.Ed. 616, was made inapplicable to the section as amended. The Court of Appeals, however, thought that the Gilliland decision meant that defrauding the United States in a financial sense is not a constituent ingredient under the False Claims Act. Therefore the Suspension Act did not apply. Cf. United States v. Gottfried, 2 Cir., 165 F.2d 360, 367. It is immaterial whether the Court of Appeals was correct in thinking that defrauding the United States in a financial sense was an essential ingredient of the False Claims Act. We think it clear that defrauding the United States is an essential ingredient of this charge of conspiracy under § 371. We do not think Marzani adds strength to the Court's position that the Suspension Act applies only to financial fraud. 63 The cases both under the first and second points of the Marzani decision deal with the suspension statutes as applied to substantive crimes that did not require proof of fraud against the United States for conviction. It was enough that the charge and proof showed perjury, false swearing or misrepresentation to a government agency. Fraud was not an essential ingredient. The contrary is true in the present prosecution under Count I. 64 As we showed in the second paragraph of this opinion, the substantive crime here charged is the conspiracy to defraud the United States, punishable as a conspiracy. The fraud is an essential element. There can be no doubt that this crime, denounced by § 371, covers nonpecuniary or nonproperty frauds. This has been true since Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 253, 54 L.Ed. 569.9 We do not agree with the Court's analysis of the indictment that the offenses charged in Count I are 'knowingly making a false statement' in a naturalization proceeding or aiding to obtain a certificate of naturalization by fraud. These are the overt acts of the Count I conspiracy, not the substantive offense of defrauding the Government in its administrative processes charged in Count I. 65 As Count I describes the substantive offense of conspiracy to defraud the United States, we do not agree with the Court's statement that: 66 'The use in Count I of language copied from the second clause of the conspiracy statute merely cloaks a factual charge of conspiring to cause, or knowingly to aid, Bridges to make a false statement under oath in his naturalization proceeding, or to obtain by false statements a Certificate of Naturalization to which he was not entitled.' 67 To prove the substantive offense of conspiracy under § 371 it is necessary to prove the fraud. It cannot be said that a false statement as to Communist membership in a naturalization hearing would not be a fraud against the administration of the naturalization laws within the language of Haas v. Henkel, supra, of 'impairing, obstructing, or defeating the lawful function of any department of government.' 216 U.S. at page 479, 30 S.Ct. at page 254. 68 We therefore would affirm the judgment below as to Count I. Petitioners have also contended here that the conviction is barred because the principles of res judicata or collateral estoppel require us to hold that Bridges' nonmembership during the crucial period has been judicially determined. They point to the Landis proceedings of 1938, referred to in Bridges v. Wixon, 326 U.S. 135, 138, 65 S.Ct. 1443, 1445, 89 L.Ed. 2103, this Court's decision in that case, and the naturalization proceedings themselves of 1945. None of these, though are res judicata, since this is a criminal cause. Nor can collateral estoppel be invoked. There has been no court holding that Bridges has not been a Communist. The Landis determination of then nonmembership was not a judicial one. Pearson v. Williams, 202 U.S. 281, 26 S.Ct. 608, 50 L.Ed. 1029. In Bridges v. Wixon, supra, no holding on the factual question of membership was reached. And the naturalization proceedings did not determine nonmembership because Bridges could legally have been granted citizenship even had he been found by the Court to have been a member of the Communist Party. See 8 U.S.C. (1946 ed.) §§ 705, 707, which merely prohibited grant of naturalization to members of organizations advocating the overthrow of the government, or to those not attached to the Constitution. This has been changed. 8 U.S.C. § 1424(a)(2), 8 U.S.C.A. § 1424(a)(2). There is no necessary identity in law between Communist Party members and such persons. See Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796. Cf. Carlson v. Landon, 342 U.S. 524, 536, n. 22, 72 S.Ct. 525, 532, 96 L.Ed. 547. 69 As our views have not prevailed as to Count I, we forbear to express any views as to Counts II and III. 1 18 U.S.C. (Supp. V) § 3287, 18 U.S.C.A. § 3287. 2 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282. 3 § 37 of the Criminal Code, 35 Stat. 1096, 18 U.S.C. § 88, now 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371. 4 54 Stat. 1163, 8 U.S.C. § 746(a)(1), now 18 U.S.C. (Supp. V) § 1015(a), 18 U.S.C.A. § 1015(a). 5 54 Stat. 1164, 8 U.S.C. § 746(a)(5), now 18 U.S.C. (Supp. V) § 1425, 18 U.S.C.A. § 1425. 6 62 Stat. 862, 18 U.S.C.A. note preceding section 1. 7 54 Stat. 1167, 8 U.S.C. § 746(g), now 18 U.S.C.A. § 3282. 8 Section 346(a) was repealed by § 21 of the Act of June 25, 1948, 62 Stat. 862, 868. Simultaneously, § 346(a)(1) was substantially reenacted in 18 U.S.C. (Supp. V) § 1015(a), 18 U.S.C.A. § 1015(a). For the effect, if any, of the saving clause in § 21 upon the statute of limitations relating to § 346(a), see 73 S.Ct. at pages 1063—1065, infra. 9 See note 8, supra, as to repeal of § 346(a). Simultaneously, § 346(a)(5) was substantially reenacted in 18 U.S.C. (Supp. V) § 1425, 18 U.S.C.A. § 1425. 10 The grant was limited to questions 1 and 2 presented by the petition for the writ, viz.: '(1) Whether, in view of prior adjudications, including the determination of this Court in Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103, this proceeding is barred, in whole or in part, by the principles of res judicata, or estoppel, or the due process clause of the Fifth Amendment. '(2) Whether this proceeding is barred by the statute of limitations.' 11 'Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within three years next after such offense shall have been committed.' 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282. I. The running of the general three-year statute of limitations was not suspended by the Wartime Suspension of Limitations Act in relation to the offenses charged in any of the counts. 12 1 Stat. 119; R.S. § 1044; 19 Stat. 32—33. The limitation as to treason or other capital offenses was three years from 1790 until it was removed in 1939. 1 Stat. 119; R.S. § 1043; 53 Stat. 1198; 18 U.S.C. (Supp. V) § 3281, 18 U.S.C.A. § 3281. 13 44 Stat. 114—115, 18 U.S.C. (1925 ed., Supp. V) § 585, now 26 U.S.C.A. § 3748(a). 14 '* * * The purposes of the added proviso (to the general limitation section) was to carve out a special class of cases. It is to be construed strictly, and held to apply only to cases shown to be clearly within its purpose.' United States v. McElvain, 272 U.S. 633, 639, 47 S.Ct. 219, 220, 71 L.Ed. 451. 15 '* * * the running of any existing statute of limitations applicable to offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, and now indictable under any existing statutes, shall be suspended until June 30, 1945, or until such earlier time as the Congress by concurrent resolution, or the President, may designate. * * *' 56 Stat. 747—748. This was amended in 1944 by the insertion of more specific references to war contracts and to the handling of property under the Surplus Property Act of 1944. 58 Stat. 667 and 781. Since September 1, 1948, 18 U.S.C. (Supp. V) § 3287, 18 U.S.C.A. § 3287, has provided that— 'When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, or (2) committed in connection with the acquisition, care, handling, custody, control or disposition of any real or personal property of the United States, or (3) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancelation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency, shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress. * * *' The President proclaimed the termination of hostilities of World War II, December 31, 1946. 3 CFR, 1946 Supp. 77—78. 16 'Sec. 1044. * * *: Provided, however, That in offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, and now indictable under any existing statutes, the period of limitation shall be six years. * * *' 42 Stat. 220, November 17, 1921. This proviso was eliminated by 45 Stat. 51, December 27, 1927. 17 In 1921, H.R.Rep.No. 365, 67th Cong., 1st Sess. 1, supporting the bill to enact the proviso, said: 'The Department of Justice has been engaged in the investigation and is now engaged in the investigation of various alleged offenses, consisting largely of frauds against the Government which are claimed to have occurred during the war with Germany and since its conclusion. Many of these alleged offenses grew out of the (contractual) relation of the Government with various persons and corporations engaged in the furnishing of military and naval supplies of various kinds. Many of these transactions require the most minute investigation in order to ascertain the exact facts, and in every case a considerable period must elapse before such facts may be gathered from the files and other sources that the department may know whether prosecutions are justified or not. In many cases months, and perhaps considerable longer periods, will be required for such investigations.' See also, 61 Cong.Rec. 7060—7061, 7640. In 1927, H.R.Rep.No. 16, 70th Cong., 1st Sess. 1, supporting the bill to eliminate the 1921 proviso, said: 'In 1921 the Attorney General represented that he was desirous of having further time to investigate alleged war frauds, and that owing to the nature of the investigations the statute of limitations might run before it would be possible to obtain indictments, and he therefore requested that the period of the statute of limitations applicable to conspiracy to defraud the Government of the United States should be extended from three years to six years. The Congress complied with the request and the limitation was extended from three to six years so to that particular class of offenses. 'The reasons for the above change have ceased to exist; that is, the Department of Justice announced some time ago that it did not propose to attempt any further prosecution of offenses of that character, that is to say, offenses giving rise to the statute.' See also, 69 Cong.Rec. 473, 842. 18 In 1942, S.Rep.No. 1544, 77th Cong., 2d Sess. 1, 2, supporting the suspension of the running of the statute, said: 'The purpose of the proposed legislation is to suspend any existing statutes of limitations applicable to offenses involving the defrauding or attempts to defraud the United States or any agency thereof, for the period of the present war. Contracting for the United States is done through its various agencies, including the departments and independent establishments and Government-owned and Government-controlled corporations, and frauds against all of these agencies are intended to be embraced by the bill. 'During the World War many frauds committed against the Government were not discovered until the 3-year statute of limitations had almost expired, and as stated in the committee report hereinafter referred to, many of the alleged offenses were barred from prosecution. The general criminal statute of limitations (Rev.Stats., sec. 1044) was amended on November 17, 1921, extending the period to 6 years in respect to offenses involving frauds against the United States. * * * 'During normal times the present 3-year statute of limitations may afford the Department of Justice sufficient time to investigate, discover, and gather evidence to prosecute frauds against the Government. The United States, however, is engaged in a gigantic war program. Huge sums of money are being expended for materials and equipment in order to carry on the war successfully. Although steps have been taken to prevent and to prosecute frauds against the Government, it is recognized that in the varied dealings opportunities will no doubt be presented for unscrupulous persons to defraud the Government or some agency. These frauds may be difficult to discover as is often true of this type of offense and many of them may not come to light for some time to come. The law-enforcement branch of the Government is also busily engaged in its many duties, including the enforcement of the espionage, sabotage, and other laws.' A similar statement was made in H.R.Rep.No. 2051, 77th Cong., 2d Sess. 1—2, supporting the same bill H.R. 6484. See also, 88 Cong.Rec. 6160. This bill, readopting the 1921 policy, was introduced at the suggestion of the Attorney General in lieu of a proposal then pending to suspend the running of the statute of limitations for every offense punishable under the laws of the United States. Hearings before Subcommittee No. 4 of the House Committee on the Judiciary on H.R. 4916, 77th Cong., 1st Sess. 6, 8, and see 88 Cong.Rec. 4759—4760. 19 Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569, and Hammerschmidt v. United States, 265 U.S. 182, 44 S.Ct. 511, 68 L.Ed. 968, are not to the contrary. The statements there made refer to conspiracies to defraud the United States 'in any manner or for any purpose' as used in the second clause of the general conspiracy section. See § 37 of the old Criminal Code, 35 Stat. 1096, now § 371 of the new Criminal Code, 18 U.S.C. (Supp. V). See also, United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598. They do not control the interpretation of the provisions in the Wartime Suspension of Limitations Act discussed in this opinion. 20 § 37 of the old Criminal Code, 35 Stat. 1096, 18 U.S.C. § 88, now 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371, see 73 S.Ct. at page 1058, supra. 21 '(g) No person shall be prosecuted, tried, or punished for any crime arising under the provisions of this Act unless the indictment is found or the information is filed within five years next after the commission of such crime.' 54 Stat. 1167, 8 U.S.C. § 746(g). 22 In that schedule of repealed actions, at 62 Stat. 868, are §§ 346(a—h), (l), and 347 of the Nationality Act of 1940, also identified as from Chapter 876, 54 Stat. 1163—1168, approved October 14, 1940. 23 See note 11, supra. 24 In United States v. Smith, 342 U.S. 225, 226—227, n. 1, 72 S.Ct. 260, 261, 96 L.Ed. 252, we assumed, without deciding, that this reservation had no effect on the running of a statute of limitations. 25 See also, the general saving clause that was in the Revised Statutes but has been regarded as not applicable to matters of remedy and procedure: 'Sec. 13. The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.' See 1 U.S.C. (Supp. V) § 109, 1 U.S.C.A. § 109. Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409; Hertz v. Woodman, 218 U.S. 205, 218, 30 S.Ct. 621, 624, 54 L.Ed. 1001; Great Northern R. Co. v. United States, 208 U.S. 452, 28 S.Ct. 313, 52 L.Ed. 567. 1 18 U.S.C. § 371, 18 U.S.C.A. § 371: 'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.' Id., § 3282: 'Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within three years next after such offense shall have been committed.' Id., § 3287: 'When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, * * * shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.' 2 Falter v. United States, 2 Cir., 23 F.2d 420, 423—424; Miller v. United States, 2 Cir., 24 F.2d 353, 360; United States v. Holt, 7 Cir., 108 F.2d 365, 368. Cf. United States v. Manton, 2 Cir., 107 F.2d 834, 838—839, a case in which two Justices of this Court sat as Circuit Justices. 3 Selective Service Act of 1948, 62 Stat. 604, 50 U.S.C.App. §§ 321, 451—470, 1001—1017, 50 U.S.C.A.Appendix, §§ 321, 451—470, 1001—1017. 4 Trading With the Enemy Act, 40 Stat. 411, as amended, 55 Stat. 839, 50 U.S.C.App. § 1 et seq., 50 U.S.C.A.Appendix, § 1 et seq. 5 Defense Production Act of 1950, 64 Stat. 798, as amended, 65 Stat. 131, 66 Stat. 296, 50 U.S.C.App. § 2061 et seq., §§ 2101 2110, 50 U.S.C.A.Appendix, §§ 2061 et seq., 2101—2110. 6 Ibid., §§ 1912, 2072, 2073. 7 Hurd v. Hodge, 334 U.S. 24, 34—35, 68 S.Ct. 847, 852—853, 92 L.Ed. 1187. 8 18 U.S.C. (1946 ed.) § 80, substantially reenacted, 18 U.S.C. § 287, 18 U.S.C.A. § 287. 9 See also United States v. Cohn, 270 U.S. 339, 346, 46 S.Ct. 251, 253, 70 L.Ed. 616; Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968; cf. United States v. Lepowitch, 318 U.S. 702, 63 S.Ct. 914, 87 L.Ed. 1091.
01
346 U.S. 156 73 S.Ct. 1077 97 L.Ed. 1522 STEINv.PEOPLE OF STATE OF NEW YORK. WISSNER v. PEOPLE OF STATE OF NEW YORK. COOPER v. PEOPLE OF STATE OF NEW YORK. Nos. 391, 392 and 393. Argued Dec. 18, 1952. Decided June 15, 1953. [Syllabus from pages 156-158 intentionally omitted] Messrs. John J. Duff, J. Bertram Wegman and Peter L. F. Sabbatino, New York City, for petitioners. Messrs. John J. O'Brien, New York City, John C. Marbach, White Plains, N.Y., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 Petitioners were found guilty of felony murder1 by a jury in Westchester County, New York, and sentenced to death. The New York Court of Appeals affirmed without opinion.2 We granted certiorari, because of questions raised by use of two confessions.3 2 The trial lasted over seven weeks and the record runs to more than 3,000 pages. Evidence proffered and heard, subject to rejection or acceptance in the judgment of the jury, included two written confessions by petitioners Cooper and Stein, together with testimony as to their incidental oral confessions and admissions. Each written confession implicated all three defendants and all objected to introduction of each confession on the ground that it was coerced. Wissner further moved as to each that, if Cooper's and Stein's confessions were admitted, all reference to him be stricken from them. The trial court heard evidence in the presence of the jury as to the issue of coercion and left determination of the question to the jury. Petitioners claim that such use of these confessions creates a constitutional infirmity which requires this Court to set aside the conviction. 3 I. Facts About the Crime. 4 The main office of Reader's Digest is thirty-one miles from New York City, in the relatively rural area of northern Westchester County, near the town of Pleasantville. From this secluded headquarters a truck several times each day makes a run to and from town. On April 3, 1950, William Waterbury was driver of the 2:50 p.m. trip into Pleasantville. He picked up Andrew Petrini, a fellow employee, and various bags containing mail, about $5,000 in cash, and about $35,000 in checks, and started down the lonely country roads to town. Neither was armed. After a few hundred yards, Waterbury was cut off and halted by another truck that had been meandering slowly in front of him. He observed a man wearing a false nose and eyeglasses and with a revolver in his hand running toward him. After an unsuccessful attempt to open the door, the assailant fired one shot into Petrini's head. Waterbury was then ordered into the back of the truck where another man tied him up. His captors took the bag containing the money and checks and abandoned the truck on a side road with Waterbury bound and gagged therein. A few minutes later he was released by a passer-by and had Petrini hurried to the hospital where he died shortly from the effects of a .38 revolver bullet lodged in his skull. 5 Near the scene of the crime police found the abandoned truck used by the killers to block the way of Waterbury. It was learned to be the property of Spring Auto Rental Co., on New York's lower East Side and at the time of the murder to have been out on hire to a man who had rented the same truck on three prior occasions and who each time had identified himself by producing New York driver's license No. 1434549, issued to W. W. Comins, of 228 West 47th Street, New York City. The address turned out to be a hotel and the name fictitious. However, the police managed to establish that the license had been procured by one William Cooper. 6 It is more than a figure of speech to say that William Cooper had an ironclad alibi: at the time of this crime he was serving a sentence in a federal penitentiary. Suspicion attached to members of his family. Nearly two months ran on with no solution of the crime, however, until toward the end of May or the beginning of June when police learned that William's brother, petitioner Calman Cooper, had served a sentence in federal prison where he was a 'working partner' and chess-playing buddy of one Brassett, who was serving time for having rifled mails addressed to the Reader's Digest while working in Pleasantville. It appeared that during their prison association Brassett had told Calman Cooper of the opportunity awaiting at Reader's Digest for an enterprising and clever robber. 7 On June 5, 1950, police arranged for Arthur Jeppeson, who had rented the Spring truck to 'W. W. Comins,' to be on a street in New York City where they expected Calman Cooper to pass. Jeppeson testified on the trial that Cooper recognized him and said to him that 'this truck that he rented from me was in a killing upstate and he had nothing to do with it * * *.' Jeppeson testified that he then asked Cooper two questions: 'Why the hell didn't you report it to the police?' and '* * * why did he give me that license * * *?' Cooper's reply was stated to be, 'That is the license they gave him to give me.' Jeppeson further testified that Cooper had inquired if the officers had shown him any pictures and asked him not to identify Cooper to the police. 8 At the end of this conversation, on Jeppeson's signal, two policemen closed in and arrested Cooper. That night (2 a.m., June 6) petitioner Stein was arrested. On June 7, about 9 a.m., petitioner Wissner was arrested. The three petitioners were arraigned and charged with murder on the evening of June 8. A fourth suspect, Dorfman, was sought but remained at large until he voluntarily surrendered on June 19, 1950. 9 All four were indicted for murder. When the time came for trial, the case against Dorfamn, who turned state's evidence, was severed. A motion for separate trial by petitioner Wissner was denied, and trial proceeded against the three remaining defendants. 10 Other than two alibi witnesses offered by Wissner and a halfhearted attempt by Cooper to establish insanity, the defense consisted almost entirely of attempts to break down the prosecution's case. None of the defendants testified. 11 The confessions constituted only a part of the evidence submitted to the jury. We can learn the context in which the confessions were obtained by the police and received in evidence only from a summary of the whole testimony. 12 Waterbury, who was in the truck with the murdered Petrini, identified Wissner as the man who fired the shot and Stein as the man who tied him up.4 He testified that on the 8th of June the police brought him to Hawthorne Barracks and that, upon entering a room in which Stein was present, defendant Stein pointed out Waterbury as the driver of the truck.5 On cross-examination, he recounted that he had picked Wissner out of a lineup at Hawthorne Barracks on June 8 and identified him as the killer.6 13 Jeppeson testified that the rental truck had been let to Cooper an April 3 and on three previous occasions, Cooper having in each case used an alias and a false license as before stated, and having given his occupation as 'bookseller.' He also testified as to his conversation with Cooper on the morning of the latter's arrest. 14 Dorfman, in substance, testified that he and Wissner were partners in an auto rental business on the lower East Side of New York City. Cooper and Stein had approached them about six weeks before April 3 with the suggestion that they collaborate on a robbery at the Reader's Digest. The truck used in the killing had been rented by Cooper on April 3 and on three previous occasions when the conspirators had driven to Pleasantville to 'case' the area and determine whether conditions were favorable for success in the crime. At these times, and one other, they also brought to Pleasantville an auto owned by the Dorfman-Wissner agency. On April 3, the four set out for Pleasantville with the truck, the car, and a tan valise containing three guns owned by Wissner. They left the car about a mile from the Reader's Digest and all got in the rented truck. The guns were distributed, Dorfman getting a black automatic and Wissner a nickel-plated revolver. The holdup proceeded in the manner described by Waterbury. Dorfman heard a short during the holdup, but did not see who fired it. On the way back, however, Wissner expressed regret at the necessity of shooting the guard. The defendants threw away their guns, left the Reader's Digest truck, with Waterbury tied up inside, on a side road and left the rental truck at the place where the car had been parked during the commission of the crime. They drove back toward New York in the car. When they got to the Bronx, they parked the car and went on by subway and taxicab to Dorfman's apartment in Brooklyn, where they divided up the proceeds and separated. Subsequently, Dorfman and one Homishak went up to the Bronx and picked up the car. 15 Under New York law, Dorfman's testimony, since he was an accomplice, required corroboration.7 It was afforded in the following ways: (1) Mrs. Dorfman testified that Cooper, Stein and Wissner had come to her apartment with her husband on the evening of April 3 and that they carried with them the tan valise which Dorfman had identified as that used on the robbery. It was established by police testimony that this valise had been found in June in Dorfman's apartment and when searched was found to contain a fragment of paper from an order form used by the Reader's Digest in April of 1950—an order form to which subscribers frequently attached cash in such manner that on removal of the cash a portion of the order form would come with it. (2) Police testified that Dorfman's automatic was found near the area where he said that he had thrown it away on April 3. (3) It was established that Petrini was killed by a bullet from a .38 revolver. (4) Homishak testified that he saw Dorfman in the company of the three petitioners on April 38 and that he accompanied Dorfman to the Bronx to pick up the car that night. (5) An employee of the Reader's Digest at Pleasantville testified that he had seen the Spring Rental truck on the premises on April 3 and on one prior occasion. (6) Jeppeson's testimony substantiated Dorfman's story about rental of the truck.9 (7) It was established that Cooper had absented himself from his job on April 3. (8) Waterbury's testimony about the events of April 3 and identification of Stein and Wissner checked with Dorfman's story. (9) The two confessions, if accepted by the jury, also were corroborative of the accomplice Dorfman in many details. 16 The defendants made no attempt to contradict or explain away any of this damaging testimony. Cooper's counsel, during a colloquy with the court, admitted that Cooper had rented the truck involved on April 3 and offered no explanation as to how this fact could be consistent with his client's claim of innocence. An effort was made on summation to convince the jury that Dorfman, who did not have a prior criminal record, was the killer and had accused these other three, with his wife's cooperation, in order to save his own life. The tenor of the defense appears from Cooper's counsel on summation: 17 'I don't care whether Cooper is innocent or guilty, that is insignificant in the solution of the fundamental problem as to whether the state troopers and other enforcing authorities themselves have violated far more fundamental principles * * *. 18 '* * * Don't narrow yourselves into a mere solution of a petty murder * * *. Of course, we want a solution to that, but that is secondary, if the solution of that means that you are going to weaken the very foundations of the republic; then you would be unfit to be jurors.' 19 Wissner's counsel devoted about half of his summation to arguing that the murder was not 'premeditated'—a point without legal significance in felony murder under New York law. II. Facts About the Confessions. 20 Against this background, we come to the controversy over the confessions. Uncontroverted evidence establishes the following: 21 Cooper.—Cooper, who made the first and most crucial confession, was arrested by the state police at 9 o'clock on Monday morning, June 5, under circumstances previously described. His father, who was with him at the time, also was arrested. Both were taken to a police station in New York City, where they were held (but not booked) until early in the afternoon. Thence, they were taken to state police headquarters at Hawthorne, in Westchester County, the county of the offense, arriving at about 2 o'clock. 22 At Hawthorne, the Coopers were separated; the father was detained in the police barracks and the son was taken to an office across the courtyard, known as the Bureau of Identification room, where Cooper's interrogation and his ultimate confession took place. 23 Although Cooper was continuously under guard and handcuffed, no one questioned him until 8 p.m., at which time three officers interrogated him for four or five hours. During this period, Cooper was confronted with his former prison mate, Brassett. However, he did not confess. Questioning was resumed the following day (Tuesday) at 10 a.m. and continued until 6 p.m., the same three officers participating. Just after 6 p.m. Cooper began to discuss confessing. At this time his father was being held at Howthorne; his brother Morris had been arrested in New York, where his mere presence violated terms of his parole and rendered him subject to disciplinary action. Cooper first obtained a commitment by the police that his father would be released if he confessed. He then asked to see an official of the Parole Board in order to obtain assurance that, if he confessed, his brother Morris would not be prosecuted for parole violation. Accordingly, about 8 p.m. Reardon, an employee of the Parole Board, came to see Cooper, but the latter was not satisfied with his interview. Reardon's superior, Parole Commissioner Donovan, was sent for. Donovan arrived at about 10 p.m. and gave Cooper satisfactory assurance that Morris would be unmolested if Cooper 'cooperated.' Cooper then confessed orally to Reardon and Donovan. Thus the confession was first imparted, not to the police who are charged with brutality, but to visiting parole officials not so accused and called in at his own request. Thereupon, a typewritten confession was prepared which Cooper signed after making certain corrections, at about 1:30 or 2 on the morning of the 7th. It is twelve pages long, in great detail; it is corroborated throughout by other evidence, and its general character is such that it could have been fabricated only by a person gifted with extraordinarily creative imagination. 24 Stein.—Stein was arrested at his brother's home at 2 a.m. on the morning of the 6th, before Cooper confessed. He was taken immediately to Hawthorne Barracks and confined in a room in the basement. The following morning, Captain Glasheen, commandant at the barracks, questioned him for an hour. After lunch questioning was resumed, with another officer joining in the questioning, and continued for two or three hours. That evening, Captain Glasheen returned and interrogated Stein from 7 p.m. until 2 a.m., with no result. At 2 a.m., Stein was informed about Cooper's confession and left with the advice to 'sleep on it.' The following morning, Stein was ready to confess. By afternoon, a statement had been prepared, corrected and signed. This seven-page statement, like Cooper's, was so complete and detailed and so dovetailed with the extrinsic evidence that, if it were not true, its author 25 The following day, Stein went to Pleasantville 26 The following day, Stein went to Pleasantiville with two officers and explained on the ground how the crime had been committed. 27 Wissner.—Wissner was arrested about 9 a.m. on June 7 subsequent to Cooper's confession, which implicated him—and taken to Hawthorne, where he remained until his arraignment. He made no confession. 28 There is no direct testimony that petitioners were subjected to physical violence or the threat of it during their detention.10 None of the defendants took the witness stand to substantiate their claims. With one exception, every police officer who had contact with Cooper or Stein during detention was or could have been questioned about it by the defense. The exception came into contact with Stein only and was not shown to have been with him except in the presence of others who were witnesses. Thus police testimony was consistent and unshaken that no violence or threats were used, that the accused were given food at mealtimes and, with the exceptions we have stated, were allowed to sleep at night. 29 The defendants' contentions as to physical violence rest entirely on circumstantial evidence. They would be utterly without support except for inferences, which they urge, from the admitted fact that when first physically examined, the day after arraignment, they showed certain bruises and injuries which could have been sustained from violent 'third-degree' methods. On the morning of June 9, they were examined by the prison physician. Cooper had been in custody at the barracks between three and four days, Stein three days and Wissner two days. 30 Testimony by the prison doctor who examined them predicated mainly on the notes he made at that time was that Wissner had a broken rib and various bruises and abrasions on the side, legs, stomach and buttocks; Cooper had bruises on the chest, stomach, right arm, and both buttocks; Stein had a bruise on his right arm. Counsel for the petitioners, who examined them on the 9th and 10th of June, testified that then injuries sustained by each were more extensive than those described in the doctor's testimony. 31 The record stands that the injuries were of such nature that they might have been received prior to arrest;11 indeed, one of the petitioners—Wissner, who exhibited perhaps the worst of the injuries but never confessed—was undergoing treatment at the time he was arrested.12 32 III. Constitutionality of Procedures Employed Below. 33 In the setting of these facts, the constitutional issues raised by petitioners involve procedural features not heretofore adjudicated by this Court. In view of the uncontradicted direct as well as circumstantial evidence against the defendants, the part, if any, played by the confessions in the conviction is uncertain. The jury was instructed to consider the confessions only if it found them to have been voluntary. It rendered a general verdict of guilty. 34 Under these circumstances, we cannot be sure whether the jury found the defendants guilty by accepting and relying, at least in part, upon the confessions or whether it rejected the confessions and found them guilty on the other evidence. Indeed, except as we rely upon a presumption that the jurors followed instructions, we cannot know that some jurors may not have acted upon one basis, while some convicted on the other. Also, since the Court of Appeals affirmed without opinion, we are not certain whether it did so on the ground that the confessions were properly relied on or that even without them the verdict was adequately supported.13 35 The New York procedures in this case therefore must be examined, not only as to their own constitutionality, but as to their consequence if valid, and the weight to be given to conclusions so reached. 36 The ideal of fair procedure was self-imposed by New York long before it was imposed upon her. New York's Constitution has enjoined observance of due process of law at least since 1821,14 and statute law has provided for exclusion from evidence of coerced confessions since 1881.15 The Court of Appeals is charged by the State with ultimate authority in such a case as this to adjudge and redress violations of that mandate. 37 Their appeal, taken as matter of right, afforded petitioners a review with a latitude much wider than is permitted to us. That court, in a death case, is empowered by statute to order a new trial for errors of law, or if the conviction is found to be 'against the weight of evidence', or if the court is satisfied for any reason whatever 'that justice requires a new trial'.16 Even where it finds that the jury could 'reasonably credit the denial of the police', if it considers that the prosecution had failed to produce all reasonably available evidence to clear charges of coercion, it will order 'a new trial, where there can be a more adequate search for the truth.' People v. Mummiani, 258 N.Y. 394, 403, 180 N.E. 94, 97, 98. 38 Although, even within this range, the Court of Appeals found no cause for upsetting this conviction, our review penetrates its judgment and searches the record in the trial court. 39 The procedure adopted by New York for excluding coerced confessions relies heavily on the jury. It requires a preliminary hearing as to admissibility, but does not permit the judge to make a final determination that a confession is admissible. He may indeed, must—exclude any confession if he is convinced that it was not freely made or that a verdict that it was so made would be against the weight of evidence. But, while he may thus cast the die against the prosecution, he cannot do so against the accused. If the voluntariness issue presents a fair question of fact, he must receive the confession and leave to the jury, under proper instructions, the ultimate determination of its voluntary character and also its truthfulness. People v. Weiner, 248 N.Y. 118, 161 N.E. 441. The judge is not required to exclude the jury while he hears evidence as to voluntariness, People v. Brasch, 193 N.Y. 46, 85 N.E. 809, and perhaps is not permitted to do so, People v. Randazzio, 194 N.Y. 147, 159, 87 N.E. 112, 117. 40 The trial court held a preliminary hearing as to admissibility of these confessions before the jury. No defendant objected or requested hearing with the jury absent. The court advised counsel for each defendant that he might cross-examine all witnesses called by the State and offer any on his own behalf, and both privileges were exercised. The judge ruled that a question of fact resulted, which he submitted under instructions which authorized the jury to find the confessions coerced not only because of 'force and intimidation and fear' but also for any 'implied coercion because of the manner in which they (the confessors) were kept in custody,' and on both grounds the burden to prove beyond reasonable doubt was placed upon the State.17 41 New York procedure does not leave the outcome finally to the caprice of a lay jury, unfamiliar with the techniques of trial practice. The trial judge, too, has a heavy responsibility resulting from broad powers to set aside a verdict if he thinks the evidence does not warrant it.18 Petitioners submitted such a motion, which the judge denied, thus adding the weight of his own approval to the jury verdict. 42 An attack on the fairness of New York procedure is that petitioners could not take the witness stand to support, with their own oaths, the charges their counsel made against the state police without becoming subject to general cross-examination. State law on the subject is disputed and uncertain. It is clear that the Court of Appeals would not have held it error had such witnesses been subjected to general cross-examination.19 Respondents, however, contend, and petitioners deny, that it is the practice of trial courts to limit cross-examination under these circumstances, and each cites records of prosecutions to confirm firm its position. 43 It is not impossible that cross-examination could be employed so as to work a denial of due process. But no basis is laid for such a contention here. Appellate courts leave an exceptional discretion to trial courts to provent abuse and injustice. But here the defendants took no step which would call for or permit an exercise of such discretion. They made no request for a ruling by the trial court and made no offer or suggestion of readiness to testify, however restricted the cross-examination might be.20 We do not know whether, or how far, the court would have permitted any line of cross-examination, nor what specific limitation defendants would have claimed. We will not adjudge a trial court guilty of constructive abuse by imputing to it a ruling that never was made on a proposition that never was put to it. 44 Petitioners' attack is so unbounded and unqualified that it could prevail only if the Fourteenth Amendment were construed to allow them to testify to their coercion by the police, shielded from any cross-examination whatever. If they had given such testimony, it would have been in direct conflict with that of the police, and the decision would depend on which was believable. Certainly the Constitution does not prohibit tests of credibility which American law uniformly applies to witnesses. If in open court, free from violence or threat of it, defendants had been obliged to admit incriminating facts, it might bear on the credibility of their claim that the same facts were admitted to the police only in response to beating. And if they became witnesses, does the Constitution compel the State to forego attack on their credibility by showing former convictions? We now know that each had an impressive felony record, one including murder and another perjury.21 Doubtless, to have testified would have resulted in disclosing this to the jury, while silence would keep it from being brought to light until after the verdict. We think, on any realistic view of this case, they stayed off the stand not because the State would subject them to any improper cross-examination but because their records made them vulnerable to any proper one. 45 The State did not seek to draw any inference adverse to defendants from their choice of silence, cf. Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, beyond the obvious fact that their confessions have not been repudiated, their charge of police violence is left without testimonial support, and the police account of the confessions is undenied. In trial of a coercion issue, as of every other issue, when the prosecution has made a case to go to the jury, an accused must choose between the disadvantage from silence and that from testifying. The Constitution safeguards the right of a defendant to remain silent; it does not assure him that he may remain silent and still enjoy the advantages that might have resulted from testifying. We cannot say that petitioners have been denied a fair hearing of the coercion charge. 46 Petitioners suffer a disadvantage inseparable from the issues they raise in that this procedure does not produce any definite, open and separate decision of the confession issue. Being cloaked by the general verdict, petitioners do not know what result they really are attacking here. For all we know, the confession issue may have been decided in their favor. The jury may have agreed that the confessions were coerced, or at least that the State had not met the burden of proving beyond a reasonable doubt that they were voluntary. If the method of submission is, as we believe, constitutional, it leaves us to review hypothetical alternatives. 47 This method of trying the coercion issue to a jury is not informative as to its disposition. Sometimes the record permits a guess or inference, but where other evidence of guilt is strong a reviewing court cannot learn whether the final result was to receive or to reject the confessions as evidence of guilt. Perhaps a more serious, practical cause of dissatisfaction is the absence of any assurance that the confessions did not serve as makeweights in a compromise verdict, some jurors accepting the confessions to overcome lingering doubt of guilt, others rejecting them but finding their doubts satisfied by other evidence, and yet others or perhaps all never reaching a separate and definite conclusion as to the confessions but returning an unanalytical and impressionistic verdict based on all they had heard. Courts uniformly disapprove compromise verdicts but are without other means than admonitions to ascertain or control the practice. Defendants, when two or more issues are submitted, are entitled to instructions appropriate to discountenance, discourage and forbid such practice. However, no question is raised in this respect as to the charge in this case. 48 In civil cases, certainty and exposure of the process is sometimes sought by the special verdict or by submission of interrogatories. E.g., 49 Fed.Rules Civ.Proc., 28 U.S.C.A. But no general practice of these techniques has developed in American criminal procedure. Our own Rules of Criminal Procedure make no provision for anything but a general verdict. Indeed, departure from this has sometimes been resisted as an impairment of the right to trial by jury, see People v. Tessmer, 171 Mich. 522, 137 N.W. 214, 41 L.R.A.,N.S., 433; State v. Boggs, 87 W.Va. 738, 106 S.E. 47, 18 A.L.R. 1360, which usually implies one simple general verdict that convicts or frees the accused. 49 Nor have the courts favored any public or private post-trial inquisition of jurors as to how they reasoned, lest it operate to intimidate, beset and harass them. This Court will not accept their own disclosure of forbidden quotient verdicts in damage cases. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300. Nor of compromise in a criminal case whereby some jurors exchanged their convictions on one issue in return for concession by other jurors on another issue. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114. 'If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.' McDonald v. Pless, supra, 238 U.S. at pages 267—268, 35 S.Ct. at page 784. 50 But this inability of a reviewing court to see what the jury has really done is inherent in jury trial of any two or more issues, and departure from instruction is a risk inseparable from jury secrecy and independence. The uncertainty, while the cause of concern and dissatisfaction in the literature of the profession, does not render the customary jury practice unconstitutional. 51 The Fourteenth Amendment does not forbid jury trial of the issue. The states are free to allocate functions as between judge and jury as they see fit. Cf. Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678; Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961. Many states emulate the New York practice,22 while others hold that presence of the jury during preliminary hearing is not error.23 Despite the difficult problems raised by such jury trial, we will not strike down as unconstitutional procedures so long established and widely approved by state judiciaries, regardless of our personal opinion as to their wisdom. 52 We have, therefore, to consider the constitutional effect of both alternatives left to the jury by the court's instruction, assuming it to have followed one or the other. They involve very different considerations and are best 53 discussed separately. IV. Was It Unconstitutional if These Confessions Were Used as the Basis of Conviction? 54 Since these convictions may rest in whole or in part upon the confessions, we must consider whether they are a constitutionally permissible foundation for a finding of guilt. 55 Inquiries on which this Court must be satisfied are: (1) Under what circumstances were the confessions obtained? (2) Has the use of the confessions been repugnant to 'that fundamental fairness essential to the very concept of justice'? Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. The first is identical with that litigated before the trial court and jury. The second is within, if not identical with, those questions considered by the state appellate court. As to both questions, we have the identical evidence that was before both state courts. At the threshold of our inquiry, therefore, lies the question: What, if any, weight do we give to the verdict of the jury, the rulings of the trial judge and the determination of the state appellate court? 56 Petitioners' argument here essentially is that the conclusions of the New York judges and jurors are mistaken and that by reweighing the same evidence we, as a superjury, should find that the confessions were coerced. This misapprehends our function and scope of review, a misconception which may be shared by some state courts with the result that they feel a diminished sense of responsibility for protecting defendants in confession cases.24 57 Of course, this Court cannot allow itself to be completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding. But that does not mean that we give no weight to the decision below, or approach the record de novo or with the latitude of choice open to some state appellate courts, such as the New York Court of Appeals. Mr. Justice Brandeis, for this Court, long ago warned that the Fourteenth Amendment does not, in guaranteeing due process, assure immunity from judicial error. Milwaukee Electric Railway & Light Co. v. State of Wisconsin ex rel. City of Milwaukee, 252 U.S. 100, 106, 40 S.Ct. 306, 309, 64 L.Ed. 476. It is only miscarriages of such gravity and magnitude that they cannot be expected to happen in an enlightened system of justice, or be tolerated by it if they do, that cause us to intervene to review, in the name of the Federal Constitution, the weight of conflicting evidence to support a decision by a state court. 58 It is common courtroom knowledge that extortion of confessions by 'third-degree' methods is charged falsely as well as denied falsely. The practical problem is to separate the true from the false. Primary, and in most cases final, responsibility for determining contested facts rests, and must rest, upon state trial and appellate courts. 59 A jury and the trial judge—knowing local conditions, close to the scene of events, hearing and observing the witnesses and parties—have the same undeniable advantages over any appellate tribunal in determining the charge of coercion of a confession as in determining the main charge of guilt of the crime. When the issue has been fairly tried and reviewed, and there is no indication that constitutional standards of judgment have been disregarded, we will accord to the state's own decision great and, in the absence of impeachment by conceded facts, decisive respect. Gallegos v. State of Nebraska, 342 U.S. 55, 60, 72 S.Ct. 141, 144, 96 L.Ed. 86; Lyons v. State of Oklahoma, 322 U.S. 596, 602—603, 64 S.Ct. 1208, 1212, 88 L.Ed. 1481; Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166. 60 Accordingly, we accept this verdict and judgment as a permissible resolution of contradictions in evidence or conflicting inferences unless, as is urged, undisputed facts indicate use of incorrect constitutional standards of judgment. This may best be determined by separate examination of the following conclusions, implicit in the judgments below: (1) that these confessions were not extorted by physical coercion; (2) that these confessions were not extorted by methods which, though short of physical coercion, were so oppressive as to render the confessions inadmissible; and (3) that admitted illegal detention of petitioners at the time of the confessions did not render them inadmissible. 61 1. Physical violence.—Physical violence or threat of it by the custodian of a prisoner during detention serves no lawful purpose, invalidates confessions that otherwise would be convincing, and is universally condemned by the law. When present, there is no need to weigh or measure its effects on the will of the individual victim. The tendency of the innocent, as well as the guilty, to risk remote results of a false confession rather than suffer immediate pain is so strong that judges long ago found it necessary to guard against miscarriages of justice by treating any confession made concurrently with torture or threat of brutality as too untrustworthy to be received as evidence of guilt. 62 Admitted injuries and bruises on defendants' bodies after arraignment were mute but unanswerable witnesses that their persons recently had been subjected to violence from some source. Slight evidence, even interested testimony, that it occurred during the period of detention or at the hands of the police, or failure by the prosecution to meet the charge with all reasonably available evidence, might well have tipped the scales of decision below.25 Even here, it would have force if there were any evidence whatever to connect the admitted injuries with the events or period of interrogation. But there is no such word in the record. 63 On the contrary, we have positive testimony of the police, not materially inconsistent or inherently improbable, unshaken on cross-examination. The only expert testimony on the subject is undisputed and is that the injuries may have been sustained before arrest. This becomes more than a possibility when we consider that neither defendants nor anyone else tell us what defendants were up to in the period just prior to arrest. We are not convinced from their criminal records and way of life as now known to us, though not to the jury, that their free days or nights were secure from violence. This, with the whole evidence concerning the confessions, leaves us no basis for throwing out the decisions of the courts below, unless we simply prefer the unsworn claims of defendants' counsel against the evidence. 64 As to the inferences to be drawn from unexplained injuries, under these circumstances, we should defer to the advantages of trial judge and jury. For seven weeks they observed the day-to-day demeanor of defendants, their attitudes and reactions; all the knowledge we have of their personalities is still photographs of two of them. The trial judge and jury also for long periods could observe the police officers whose conduct was in question, knew not only what they answered but how they answered, could form some opinions of their attitudes—of the personal characteristics which never can get into a printed record but which make for belief or unbelief that they were guilty of cruelty and violence. 65 We determine that the state court could properly find that the confessions were not obtained by physical force or threats. 66 2. Psychological coercion.—Psychological coercion is claimed as a secondary contention. It is urged that admitted facts show psychological pressure by interrogation, such as to overpower these petitioners' mental resistance and induce involuntary confessions. Of course, a process of interrogation can be so prolonged and unremitting, especially when accompanied by deprivation of refreshment, rest or relief, as to accomplish extortion of an involuntary confession. 67 But the inquiry as to such allegations has a different point of departure. Interrogation is not inherently coercive, as is physical violence. Interrogation does have social value in solving crime, as physical force does not. By their own answers many suspects clear themselves, and the information they give frequently points out another who is guilty. Indeed, interrogation of those who know something about the facts is the chief means to solution of crime. The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.26 This Court never has held that the Fourteenth Amendment prohibits a state from such detention and interrogation of a suspect as under the circumstances appears reasonable and not coercive. 68 Of course, such inquiries have limits. But the limits are not defined merely by calling an interrogation an 'inquisition,' which adds to the problem only the emotions inherited from medieval experience. The limits in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal. 69 Both Stein and Cooper confessed only after about twelve hours of intermittent questioning. In each case this was stretched out over a 32-hour period, with the suspect sleeping and eating in the interim. In the case of Cooper, a substantial part of this time he spent driving a bargain with the police and the parole officers. It also is true that the questioning was by a number of officers at a time and by different officers at different times. But we cannot say that the use of successive officers to question these petitioners for the periods of time indicated is so oppressive as to overwhelm powers of resistance. While we have reversed convictions founded on confessions secured through interrogations by 'relays,'27 we have also sustained conviction when, under different circumstances, the relay technique was employed.28 But we have never gone so far as to hold that the Fourteenth Amendment requires a one-to-one ratio between interrogators and prisoners, or that extensive questioning of a prisoner automatically makes the evidence he gives in response constitutionally prohibited. 70 The inward consciousness of having committed a murder and a robbery and of being confronted with evidence of guilt which they could neither deny nor explain seems enough to account for the confessions here. These men were not young, soft, ignorant or timid. They were not inexperienced in the ways of crime or its detection, nor were they dumb as to their rights. At the very end of his interrogation, the spectacle of Cooper naming his own terms for confession, deciding for himself with whom he would negotiate, getting what he wanted as a consideration for telling what he knew, reduces to absurdity his present claim that he was coerced into confession. Of course, these confessions were not voluntary in the sense that petitioners wanted to make them or that they were completely spontaneous, like a confession to a priest, a lawyer, or a psychiatrist. But in this sense no criminal confession is voluntary. 71 Cooper's and Stein's confessions obviously came when they were convinced that their dance was over and the time had come to pay the fiddler. Even then, Cooper was so far in control of himself and the situation as to dicate the quid pro quo for which he would confess. That confession came at a time when he must have known that the police already knew enough, from Jeppeson and Brassett, to make his implication inevitable. Stein held out until after Cooper had confessed and implicated him.29 Both confessions were 'voluntary,' in the only sense in which confessions to the police by one under arrest and suspicion ever are. The state court could properly find an absence of psychological coercion. 72 3. Illegal detention.—Illegal detention alone is said to void these confessions. All three of the prisoners were held incommunicado at the barracks until the evening of June 8, when they were taken before a nearby magistrate and arraigned. This delay in arraignment was held by the trial judge to be unreasonable as a matter of law and a violation of the statutes of the State of New York.30 However, such delay does not make a confession secured during such period of illegal detention necessarily inadmissible as a matter of New York law.31 73 To delay arraignment, meanwhile holding the suspect incommunicado, facilitates and usually accompanies use of 'third-degree' methods. Therefore, we regard such occurrences as relevant circumstantial evidence in the inquiry as to physical or psychological coercion. As such, it was received and the jury was instructed to consider it in this case. But the petitioners' contention here goes farther—it is that the delayed arraignment compelled the rejection of the confessions. 74 Petitioners confuse the more rigid rule of exclusion which, in the exercise of our supervisory power,32 we have promulgated for federal courts with the more limited requirements of the Fourteenth Amendment.33 This, we have held, did not impose rules of evidence on state courts which bind them to exclude a confession because, without coercion, it was obtained while a prisoner was uncounseled and illegally detained. Stroble v. State of California, 343 U.S. 181, 197, 72 S.Ct. 599, 607, 96 L.Ed. 872; Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166. 75 From the foregoing considerations, we conclude that if the jury resolved that the confessions were admissible as a basis for conviction it was not 76 constitutional error. V. If the Jury Rejected the Confessions, Could It Constitutionally Base a Conviction on Other Sufficient Evidence? 77 Petitioners raised this question by a request for instruction to the jury that if it found the confessions to have been coerced it must return a verdict of acquittal. This was refused. Their principal authority for the requested charge is Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029, which was tried by the same procedure followed here. This Court reversed the conviction and the opinion of four justices said of the confession found therein to have been coerced, 324 U.S. at page 404, 65 S.Ct. at page 783: 'And if it is introduced at the trial, the judgment of conviction will be set aside even though the evidence apart from the confession might have been sufficient to sustain the jury's verdict.' Similar expressions are to be found in other cases. 78 It is hard to see why a jury should be allowed to return a verdict which cannot be allowed to stand. If having heard an illegally obtained confession prevents a legal verdict of guilty on other sufficient evidence, why permit return of one foredoomed to be illegal? The alternative, of course, is an acquittal, which is what petitioners asked. 79 The claim is far-reaching. There can be no jury trial of the coercion issue without bringing to the knowledge of the jurors the fact of confession and usually its contents. But American practice has evolved no technique for learning, through special verdict or otherwise, what part the knowledge plays in the result. Hence the dilemma of this case is always present, if not presented in earlier cases. If this uncertainty invalidates any conviction or requires an acquittal, it is a grave matter, for most states, like New York, permit no prosecution after acquittal.34 This would go far toward making it impracticable to submit the issue of coercion to the jury, a traditional practice assumed on the whole to be of advantage to the defense and an additional protection to the accused. 80 The claim also is novel. This Court never has decided that reception of a confession into evidence, even if we held it to be coerced, requires an acquittal or discharge of a defendant. On the contrary, this Court has returned all such cases for retrial, which we should not have done if obtaining and attempted use of a coerced confession were enough to require acquittal. 81 It is not deniable that apart from the Malinski statement there have been other similar utterances. Lyons v. State of Oklahoma, 322 U.S. 596, 597 (footnote) 64 S.Ct. 1208, 1210, 88 L.Ed. 1481; Stroble v. State of California, 343 U.S. 181, 190, 72 S.Ct. 599, 603, 96 L.Ed. 872; Gallegos v. State of Nebraska, 342 U.S. 55, 63, 72 S.Ct. 141, 146, 96 L.Ed. 86. It is clear, however, that these statements were dicta about a proposition not essential to the result, since in each instance those confessions were sustained and the convictions affirmed. And, of course, the present consequences were not asserted or argued at the bar nor anticipated or approved by anything appearing in the opinions. 82 Except in Malinski, the question presented here could not have been raised or decided. This Court's power to reverse such a conviction was first exerted in Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, in which the only evidence in the trial consisted of a confession admittedly secured through mob violence. The Court there reasoned that if the defendant's 'trial' consisted solely of the introduction of such evidence, he had only a 'mere pretense' of a trial; the actual trial had occurred during the extortion of the confession, and the subsequent proceeding was only a formal ratification of the mob's action. Such a proceeding would be a violation of the Due Process Clause under even the most restricted view. In Ashcraft v. State of Tennessee, 322 U.S. 143, 145, 64 S.Ct. 921, 922, 88 L.Ed. 1192, and Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663, we noted that without the confession there could be no conviction. And in Lyons, there was no credible evidence of guilt in the record except the confession; in the Gallegos case, it is noted that conviction without the confession 'would logically have been impossible' 342 U.S. at page 60, 72 S.Ct. at page 145, and this Court therefore assumed that the jury found the statements voluntary. 83 Against this factual background, we do not think our cases establish that to submit a confession to a state jury for judgment of the coercion issue automatically disqualifies it from finding a conviction on other sufficient evidence, if it rejects the confession.35 Here the evidence of guilt, consisting of direct testimony of the surviving victim, Waterbury, and the well-corroborated accomplice, Dorfman, as well as incriminating circumstances unexplained, is enough apart from the confessions so that it could not be held constitutionally or legally insufficient to warrant the jury verdict. Indeed, if the confession had been omitted and the convictions rested on the other evidence alone, we would find no grounds to review, not to mention to reverse it. 84 We would have a different question if the procedure had been that which may have been in mind when some of our cases were written. Of course, where the judge makes a final determination that a confession is admissible and sends it to the jury as a part of the evidence to be considered on the issue of guilt and the ruling admitting the confession is found on review to be erroneous, the conviction, at least normally, should fall with the confession. 85 But here the confessions are put before the jury only tentatively, subject to its judgment as to voluntariness and with binding instructions that they be rejected and ignored unless found beyond reasonable doubt to have been voluntary. By petitioners' hypothesis on this point, the jury itself rejected the confession. The ample other evidence makes this a possible, if not very convincing, explanation of the verdict. By the very assumption, however, there has been no error, for the confession finally was rejected as the free choice of the jury. 86 We could hold that such provisional and contingent presentation of the confessions precludes a verdict on the other sufficient evidence after they are rejected only if we deemed the Fourteenth Amendment to enact a rigid exclusionary rule of evidence rather than a guarantee against conviction on inherently untrustworthy evidence. We have refused to hold it to enact an exclusionary rule in the case of other illegally obtained evidence. Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232; Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674. See Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903; United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48. Coerced confessions are not more stained with illegality than other evidence obtained in violation of law. But reliance on a coerced confession vitiates a conviction because such a confession combines the persuasiveness of apparent conclusiveness with what judicial experience shows to be illusory and deceptive evidence. A beaten confession is a false foundation for any conviction, while evidence obtained by illegal search and seizure, wire-tapping, or larceny may be and often is of the utmost verity. Such police lawlessness therefore may not void state convictions while forced confessions will do so. 87 We find no error in refusing the instruction asked in this case. 88 But this does not exhaust petitioners' arsenal of objections. They argue that even if the jury were permitted to find the verdict, a reviewing court must set it aside. They say that affirmance without opinion may mean that, while the Court of Appeals thought the treatment of the confessions erroneous, it may have affirmed on the basis that, in view of other sufficient evidence, the error was harmless. The New York statute,36 like the Federal Rules of Criminal Procedure,37 Commands reviewing courts to disregard errors and irregularities which do not affect substantial rights. That such a general legislative mandate is constitutional is not in question. If the general rule is not prohibited, the question in each case becomes one as to the propriety of its application to the evidence. In a trial such as this, lasting seven weeks, where objections by three defense counsel required in excess of three hundred rulings by the trial court without the long deliberation and debate possible for appellate court consideration, it would be a miracle if there were not some questions on which an appellate court would rule otherwise than did the trial judge. The harmless-error statutes have been adopted to give discretion to overlook errors which cannot be seen to do injustice. 89 But, whatever may have been the grounds of the Court of Appeals, we base our decision, not upon grounds that error has been harmless, but upon the ground that we find no constitutional error. We have pointed out that it was not error if the jury admitted and relied on the confession and was not error if they rejected it and convicted on other evidence. To say that although there was no error in the trial an appellate court must reverse would require justification by more authority than we are able to discover. 90 VI. Wissner's Case. 91 Wissner's case is somewhat different and its disposition involves other considerations. Wissner never confessed, but he was implicated by those who did. His objections raise questions of admissibility of the confessions to which he was not a party. 92 However, we find as regards Wissner no constitutional error such as would justify our setting aside his conviction. 93 Our holding that it was permissible for the state courts to find that the confessions were voluntary takes away the support for Wissner's position here. But, even if the confessions were considered to have been involuntary, their use would not have violated any federal right of Wissner's. Malinski v. People of State of New York, 324 U.S. 401, 410—412, 65 S.Ct. 781, 786—787, 89 L.Ed. 1029. This Court there refused to reverse the conviction of Rudish, a codefendant of Malinski who had been named in the latter's confession. It is true that Rudish's name was there deleted and an 'X' substituted in its place before the jury got the confession. Use of this device does not appear to have been controlling in the Court's decision and Mr. Justice Rutledge, dissenting, pointed out what no one questioned, that 'The devices were so obvious as perhaps to emphasize the identity of those they purported to conceal.' 324 U.S. at page 430, 65 S.Ct. at page 795. On remand, the New York Court of Appeals on its own initiative ordered a new trial for Rudish as well as Malinski. People v. Rudish, 294 N.Y. 500, 63 N.E.2d 77. Surely in the light of the other testimony such a deletion from the confessions here would not have diverted their incriminating statements from Wissner to an anonymous nobody. 94 Wissner, however, contends that his federal rights were infringed because he was unable to cross-examine accusing witnesses, i.e., the confessors. He contends that the 'privilege of confrontation' is secured by the Fourteenth Amendment, relying on one sentence in Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 332, 78 L.Ed. 674.38 However, the words cited were quoted verbatim from Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753, in which the language was used to describe the purpose of the Sixth Amendment provision on confrontation in federal cases. It was transposed to Snyder solely to point out the distinction between a right of confrontation and a mere right of an accused to be present as his own trial.39 The Court in Snyder specifically refrained from holding that there was any right of confrontation under the Fourteenth Amendment,40 and clearly held to the contrary in West v. State of Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965, in which it was decided that the Federal Constitution did not preclude Louisiana from using affidavits on a criminal trial. 95 Basically, Wissner's objection to the introduction of these confessions is that as to him they are hearsay. The hearsay-evidence rule, with all its subtleties, anomalies and ramifications, will not be read into the Fourteenth Amendment. Cf. West v. State of Louisiana, supra. 96 Perhaps the methods adopted by the New York courts to protect Wissner against any disadvantage from the State's use of the Cooper and Stein confessions were not the most effective conceivable. But 'Its procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.' Snyder v. Commonwealth of Massachusetts, supra, 291 U.S. at page 105, 54 S.Ct. at page 332. VII. 97 Third-degree violence has been too often denounced by courts for anything useful to come out of mere repetition of invectives. It is a crime under state law and, in some circumstances, under federal law. Screws v. United States, 325 U.S. 91, 65 S.Ct 1031, 89 L.Ed. 1495; Koehler v. United States, 5 Cir., 189 F.2d 711; Id., 342 U.S. 852, 72 S.Ct. 75, 96 L.Ed. 643. 98 When the penalty is death, we, like state court judges, are tempted to strain the evidence and even, in close cases, the law in order to give a doubtfully condemned man another chance. But we cannot see the slightest justification for reading the Fourteenth Amendment to deny the State of New York the power to hold these defendants guilty on the record before us.41 99 We are not willing to discredit constitutional doctrines for protection of the innocent by making of them mere technical loopholes for the escape of the guilty. The petitioners have had fair trial and fair review. The people of the State are also entitled to due process of law. 100 Affirmed. 101 Mr. Justice BLACK, dissenting. 102 I concur in Mr. Justice DOUGLAS' opinion. 103 More constitutional safeguards go here—one, the right of a person to be free from arbitrary seizure, secret confinement and police bludgeoning to make him testify against himself in absence of relative, friend or counsel; another, the right of an accused to confront and cross-examine witnesses who swear he is guilty of crime. Tyrannies have always subjected life and liberty to such secret inquisitorial and oppressive practices. But in many cases, beginning at least as early as Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, this Court set aside state convictions as violative of due process when based on confessions extracted by state police while suspects were held incommunicado. That line of cases is greatly weakened if not repudiated by today's sanction of the arbitrary seizure and secret questioning of the defendants here. State police wishing to seize and hold people incommunicado are now given a green light. Moreover, the Court actually holds (unnecessarily, I think) that states are free to deny defendants an opportunity to confront and cross-examine witnesses who testify against them, even in death cases. This also runs counter to what we have said due process guarantees an accused. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682.* Lastly, today's opinion takes this opportunity to narrow the scope this Court has previously given the Fifth Amendment's guarantee that no person 'shall be compelled in any criminal case to be a witness against himself.' Bram v. United States, 168 U.S. 532, 544, 18 S.Ct. 183, 187, 42 L.Ed. 568, held that this constitutional provision forbids federal officers to 'browbeat' an accused, or to 'push him into a corner, and to entrap him into fatal contradictions * * *.' The Court adds the Bram case to those it repudiates today, apparently agreeing with Professor Wigmore that Mr. Justice White's opinion there represents 'the height of absurdity * * *.' 104 In short, the Court's holding and opinion break down barriers that have heretofore stood in the way of secret and arbitrary governmental action directed against persons suspected of crime or political unorthodoxy. My objection to such action by any governmental agent or agency has been set out in many opinions. See for illustration, Chambers v. State of Florida, supra, and Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Id., 327 U.S. 274, 66 S.Ct. 544, 90 L.Ed. 667 (alleged confessions extracted without violence while suspects held incommunicado at the mercy of police officers); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (secret conviction based on incommunicado questioning by three judges where the accused had neither relative, friend or counsel present); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 142, 71 S.Ct. 624, 633, 95 L.Ed. 817 (Attorney General's public condemnation of groups as treasonable and subversive based on secret information without notice or hearing); dissenting opinions, Gallegos v. State of Nebraska, 342 U.S. 55, 73, 72 S.Ct. 141, 151, 96 L.Ed. 86 (arbitrary arrest, secret imprisonment and systematic questioning to obtain an alleged confession); Carlson v. Landon, 342 U.S. 524, 547, 72 S.Ct. 525, 537, 96 L.Ed. 547 (Attorney General's denial of bail based on secret charges by secret informers without affording accused a hearing); Ludecke v. Watkins, 335 U.S. 160, 173, 68 S.Ct. 1429, 1435, 92 L.Ed. 881 (Attorney General's judicially unreviewable banishment of an alien based on secret undisclosed information and without a hearing); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 216, 73 S.Ct. 625, 631 (Attorney General's judicially unreviewable imprisonment and denial of bail to an alien based on secret undisclosed information and without a hearing). 105 I join Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS in protesting the Court's action in these cases. 106 Mr. Justice FRANKFURTER, dissenting. 107 1. Of course the Fourteenth Amendment is not to be applied so as to turn this Court into a tribunal for revision of criminal convictions in the State courts. I have on more than one occasion expressed my strong belief that the requirements of due process do not hamper the States, beyond the narrow limits of imposing upon them standards of decency deeply felt and widely recognized in Anglo-American jurisdictions, either in penalizing conduct or in defining procedures appropriate for securing obedience to penal laws. Nor is this substantial autonomy of the States to be curtailed in capital cases. 108 2. It is common ground that the third degree—the colloquial term for subjecting an accused to police pressures in order to extract confessions—may reach a point where confessions, although not resulting from the application of physical force, are as a matter of human experience equally the results of coercion in any fair meaning of that term and therefore not 'voluntary' in any relevant sense. Differences of view inevitably arise among judges in deciding when that point has been reached. Such differences are reflected in a long series of cases in this Court. An important factor, no doubt, influencing the different conclusions is the varying intensity of feeling on the part of different judges that coercive police methods not only may bring into question the trustworthiness of a confession but tend to brutalize habits of feeling and action on the part of the police, thereby adversely affecting the moral tone of the community. 109 Of course, the most serious deference is to be accorded the conclusion reached by a State court that a confession was not coerced. See my concurring opinions in Malinski v. People of State of New York, 324 U.S. 401, 412, 65 S.Ct. 781, 786, 89 L.Ed. 1029; Haley v. State of Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92 L.Ed. 224. But the duty of deference cannot be allowed imperceptibly to slide into an abdication by this Court of its obligation to ascertain whether, under the circumstances of a particular case, a confession represents not the candor of a guilty conscience, the need of an accused to unburden himself, but the means of release from the tightening of the psychological police screws. This issue must be decided without regard to the confirmation of details in the confession by reliable other evidence. The determination must not be influenced by an irrelevant feeling of certitude that the accused is guilty of the crime to which he confessed. Above all, it must not be influenced by knowledge, however it may have revealed itself, that the accused is a bad man with a long criminal record. All this, not out of tenderness for the accused but because we have reached a certain stage of civilization. 110 In the light of these considerations, I am compelled to conclude that the confessions here were the product of coercive police pressure. I cannot believe that these confessions, in view of the circumstances under which they were elicited, would be admitted in a criminal trial in England, or in the courts of Canada, Australia or India. I regret that the Court reaches another conclusion on the record, though I respect a conscientious interpretation of the record differing from mine. 111 3. But the Court goes beyond a mere evaluation of the facts of this record. It makes a needlessly broad ruling of law which overturns what I had assumed was a settled principle of constitutional law. It does so sua sponte. The question was not raised and not argued and has emerged for the first time in the Court's opinion. Unless I am mistaken about the reach of the Court's opinion, and I profoundly hope that I am, the Court now holds that a criminal conviction sustained by the highest court of a State, and more especially one involving a sentence of death, is not to be reversed for a new trial, even though there entered into the conviction a coerced confession which in and of itself disregards the prohibition of the Due Process Clause of the Fourteenth Amendment. The Court now holds that it is not enough for a defendant to establish in this Court that he was deprived of a protection which the Constitution of the United States affords him; he must also prove that if the evidence unconstitutionally admitted were excised there would not be enough left to authorize the jury to find guilt. 112 An impressive body of opinion, never questioned by any decision or expression of this Court, has established a contrary principle. And this not only with reference to the admissibility of coerced confessions; the principle has governed other aspects of disregard of the requirements of the Fourteenth Amendment in State trials. I refer inter alia to cases of discrimination in the selection of personnel of a grand jury which found an indictment. We have reversed in such cases even though there was no error in the conduct of the trial itself. 113 4. It is painful to be compelled to say that the Court is taking a retrogressive step in the administration of criminal justice. I can only hope that it is a temporary, perhaps an ad hoc, deviation from a long course of decisions. By its change of direction the Court affords new inducement to police and prosecutors to employ the third degree, whose use the Wickersham Commission found 'widespread' more than thirty years ago and which it unsparingly condemned as 'conduct * * * violative of the fundamental principles of constitutional liberty.' IV Reports, National Commission on Law Observance and Enforcement, 1, 4, 6 (1931).* 114 The Wickersham Commission deemed it its duty 'to lay the facts—the naked, ugly facts—of the existing abuses before the public,' id., at 6, in the hope of arousing public awareness, and thereby public condemnation, of such abuses. It surely is not self-deluding or boastful to believe that the series of cases in which this Court reversed convictions because of such abuses helped to educate public opinion and to arouse in prosecutors and police not only a wholesome fear but also a more conscientious feeling against resort to these lazy, brutal methods. 115 In addressing himself to law enforcement officials, Director J. Edgar Hoover of the Federal Bureau of Investigation has made these observations: 'One of the quickest ways for any law enforcement officer to bring public disrepute upon himself, his organization and the entire profession is to be found guilty of a violation of civil rights. * * * Civil rights violations are all the more regrettable because they are so unnecessary. Professional standards in law enforcement provide for fighting crime with intelligence rather than force.' (FBI Law Enforcement Bulletin, September, 1952, p. 1.) But if law officers learn that from now on they can coerce confessions without risk, since trial judges may admit such confessions provided only that, perhaps through the very process of extorting them, other evidence has been procured on which a conviction can be sustained, police in the future even more so than in the past will take the easy but ugly path of the third degree. I do not remotely suggest that any such result is contemplated by the Court. But it will not be the first time that results neither desired nor foreseen by an opinion have followed. 116 5. The matters which I have thus briefly stated cut so deep as to call for full exposition. Since promptness in the disposition of criminal cases is one of the most important factors for a civilized system of criminal justice, I must content myself now with this summary of my views without their elaboration. 117 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 118 If the opinion of the Court means what it says, we are entering upon a new regime of constitutional law that should give every citizen pause. Heretofore constitutional rights have had greater dignity than rules of evidence. They have constituted guarantees that are inviolable. They have been a bulwark against overzealous investigators, inhuman police, and unscrupulous prosecutors. They have placed a prohibition on practices which history showed were infamous. An officer who indulged in the prohibited practices was acting lawlessly; and he could not in any way employ the products of his lawless activities against the citizen whose constitutional rights were infringed. But now it is said that if prejudice is not shown, if there was enough evidence to convict regardless of the invasion of the citizen's constitutional right, the judgment of conviction must stand and the defendant sent to his death. 119 In taking that course the Court chooses a short-cut which does violence to our constitutional scheme. 120 The denial of a right guaranteed to a defendant by the Constitution has never been treated by this Court as a matter of mere error in the proceedings below which, if not affecting substantial rights, might be disregarded. 121 Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, established the rule that due process requires, in certain cases at least, that the state court appoint counsel to represent an indigent defendant. And the right to counsel includes the right to have counsel appointed in time to allow adequate preparation of the case. Neither in the Powell case nor in any of those which followed it has the weight of the evidence against the defendant been deemed relevant to the issue of the validity of the conviction. See Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tomkins v. State of Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; De Meerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584. In Hawk v. Olson, 326 U.S. 271, at page 278, 66 S.Ct. 116, at page 120, 90 L.Ed. 61, we said: 122 'Continuance may or may not have been useful to the accused but the importance of the assistance of counsel in a serious criminal charge after arraignment is too large to permit speculation on its effect. * * * 123 'Petitioner states a good cause of action when he alleges facts which support his contention that through denial of asserted constitutional rights he has not had the kind of trial in a state court which the due process clause of the Fourteenth Amendment requires.' 124 A similar rule prevails where the prosecution has made knowing use of perjured testimony to convict an accused. Money v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791; Hysler v. State of Florida, 315 U.S. 411, 316 U.S. 642, 62 S.Ct. 688, 86 L.Ed. 932; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 117, 87 L.Ed. 214. It has never been thought necessary to attempt to weed the perjured testimony from the nonperjured for the purpose of determining the degree of prejudice which resulted. 125 In In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, we reversed a conviction for contempt based on a secret trial in which the defendant was denied reasonable notice of the charge against him, the opportunity to prepare a defense, the right to testify on his own behalf, the right to confront the witnesses against him and the right to be represented by counsel. No one, I suppose, would argue that such a conviction should be sustained merely because the record indicated quite conclusively that the defendant was guilty. 126 In Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, the Court dealt with a claim that the defendants had been convicted in a trial dominated by a mob. The defendants were charged with the murder of one Lee. They professed their innocence before the Court. Mr. Justice Holmes disposed of the assertion with these words: 127 'The petitioners say that Lee must have been killed by other whites, but that we leave on one side as what we have to deal with is not the petitioners' innocence or guilt but solely the question whether their constitutional rights have been preserved.' 128 Another illustration is the practice of discriminating against Negroes in the selection of juries. In none of the cases from Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567, and Carter v. State of Texas, 177 U.S. 442, 443, 20 S.Ct. 687, 688, 44 L.Ed. 839, down to Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 892, has the lack of a showing of actual prejudice precluded reversal. We indeed said in the Avery case that if the jury commissioners failed in their duty to use a nondiscriminatory method of selecting a jury, the 'conviction must be reversed—no matter how strong the evidence of petitioner's guilt.' The reason is plain. The Constitution gives Negroes the right to be tried by juries drawn from the entire community, not hand-picked from the white people alone. Must a Negro now show that he suffered actual prejudice because none of his race served on the jury? 129 The requirement of counsel, the right of the accused to be confronted with the witnesses against him, his right to be given notice of the charge, his right to a fair and impartial tribunal, his right to a jury drawn from a fair cross-section of the community—none of these guarantees given by the Constitution is more precise than the prohibition against coerced confessions. 130 The rule now announced is, indeed, contrary to our prior decisions dealing with the effect of a coerced confession on a judgment of conviction. See Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029; Stroble v. State of California, 343 U.S. 181, 190, 72 S.Ct. 599, 603, 96 L.Ed. 872; Lyons v. State of Oklahoma, 322 U.S. 596, 597, 64 S.Ct. 1208, 1210, 88 L.Ed. 1481; Haley v. State of Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224; and Gallegos v. State of Nebraska, 342 U.S. 55, 63, 72 S.Ct. 141, 146, 96 L.Ed. 86. 131 The Court's characterization of these rulings as dicta is not correct. In the Malinski case a conviction was reversed even though other evidence might have supported the verdict. In the Lyons case (where the second confession was drawn in question) we noted, 322 U.S. at page 598, 64 S.Ct. at page 1210, that a third confession was introduced without objection. Yet in spite of that fact we devoted a whole opinion to an analysis of whether the second confession was voluntary. In the Stroble case the California Supreme Court had held that the use of a challenged confession had not deprived petitioner of due process, since it did not appear that the outcome of the trial would have been different if the confession had been excluded. 343 U.S. at page 189, 72 S.Ct. at page 603. We disapproved that view and proceeded on the authority of our decisions in the Malinski and Lyons cases to examine the facts surrounding the confession to see if it was voluntary. Id., 343 U.S. at pages 190—191, 72 S.Ct. at pages 603—604. 132 In each of those three cases we dealt with the merits of the claims that the confessions were coerced—a wholly unnecessary task had the rule as stated in the Malinski case not been controlling. 133 And with respect to the Malinski case, it should be noted that, despite a dissent by four Justices, no one took exception to the rule that the use of a coerced confession violates due process. 134 Perhaps the decision in the instant cases is premised on the view that Due Process prohibits the use of coerced confessions merely because of their inherent untrustworthiness. If so, that too is a radical departure from the rationale of our prior decisions. In Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, Mr. Justice Roberts, speaking for the Court concerning the inadmissibility of coerced confessions, said: 135 'The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false.' 136 As Mr. Justice FRANKFURTER states in his dissenting opinion that rule is the product of a civilization which by respecting the dignity even of the least worthy citizen raises the stature of all of us and builds an atmosphere of trust and confidence in government. 137 The practice now sanctioned is a plain violation of the command of the Fifth Amendment, made applicable to the States by the Fourteenth, see Brown v. State of Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682; Chambers v. State of Florida, 309 U.S. 227, 238, 60 S.Ct. 472, 477, 84 L.Ed. 716, that no man can be compelled to testify against himself* That should be the guide to our decisions until and unless the Fifth Amendment is itself amended to incorporate the rule the Court today announces. 1 A homicide committed by a person engaged in the commission of a felony. It is first-degree murder and carries a mandatory death sentence unless the jury recommends life imprisonment. New York Penal Law, §§ 1044(2), 1045, 1045—a, McK.Consol.Laws, c. 88. No such recommendation was made here. 2 People v. Cooper, 303 N.Y. 856, 104 N.E.2d 917. 3 344 U.S. 815, 73 S.Ct. 51. 4 The defense argued that Waterbury's recollection was inaccurate and that he had only 25% vision in one eye. 5 The defense says that this constitutes a coerced confession—Stein having made the statement in police custody. It was not a confession of guilt but an admission of a specific fact. Although New York may impose the same requirements for admissibility on an admission as it does on a confession, see People v. Reilly, 181 App.Div. 522, 528, 169 N.Y.S. 119, 123, affirmed, 224 N.Y. 90, 120 N.E. 113, such utterances are not usually subject to the same restrictions on admissibility as are confessions. See Wigmore on Evidence (3d ed.) § 821(3). In the face of the weight of authority to the contrary, it cannot be said that any such requirement is imposed by the Fourteenth Amendment. Even if this admission were subject to the same reliability tests as confessions, there is no evidence that Stein was under any coercion thirty hours after his confession of June 7. 6 The defense point out that: Waterbury went through the lineup two or three times before identifying Wissner; the lineup consisted of Wissner and several state troopers, each of whom was several inches taller than Wissner; two ladies who had seen a man who might have been the killer lurking in the vicinity of the Reader's Digest on April 3 also went through the lineup, and each of them identified as that man one of the state troopers in the lineup who was in Long Island on the day of the murder. The facts show that the lineup was not so constructed as to suggest Wissner as the man to be identified. 7 N.Y.Code Crim.Proc. § 399, McK.Consol.Laws, c. 442. People v. Goldstein, 285 N.Y. 376, 34 N.E.2d 362. 8 There is conflict between the testimony of Homishak and Dorfman, the former placing the four conspiractors on April 3 at a place different from that where Dorfman says they were. 9 Jeppeson stated that the truck was rented in each case on a Saturday and returned on two occasions early Monday morning which contradicts Dorfman's testimony that each junket to Pleasantville had been on a Monday morning. Jeppeson was testifying from recollection, unaided by record. 10 The defense sought, unsuccessfully, to introduce an affidavit submitted on a prior motion by Stein's counsel which, according to Stein's brief here, set forth an account which counsel received from Stein concerning police brutality. (This affidavit, though marked for identification, was not made part of the record here.) During oral argument on trial, counsel for defendants made many allusions as to violent conduct on the part of the police; and petitioner Cooper made an outburst accusing a police witness of lying, but did not become his own witness. Other than this, defendants took no action to establish their contentions. Prior to the trial, the defendants brought a proceeding in the Supreme Court of Westchester County to have the two confessions suppressed on the ground that they were illegally obtained. The prosecution denied the allegations of police misconduct which the defendants advanced in support of this motion and, in view of the conflict in the evidence, determination of the admissibility of the confessions was postponed until the trial. 11 Dr. Vosburgh, the physician who had examined petitioners on June 9, testified that it was difficult to state exactly how long the bruises had been there; that the bruises on Cooper's body could have been as much as six days old (he had been in custody three days); and that Stein's bruises could bave been sustained prior to arrest. 12 This evidence was hearsay, but was not objected to by the defendants. 13 A prior decision of the Court of Appeals indicates that it will reverse whenever a coerced confession appears in evidence, regardless of the other evidence. See People v. Leyra, 302 N.Y. 353, 364, 98 N.E.2d 553, 559. However, it appears probable that the court there was applying a doctrine, not of New York law, but one which it considered to be imposed by this Court and the Fourteenth Amendment. For the New York rule does not appear to us to be free from doubt. See People v. Fisher, 249 N.Y. 419, 426, 164 N.E. 336, 338; People v. Samuels, 302 N.Y. 163, 173, 96 N.E.2d 757, 762; People v. Leyra, 304 N.Y. 468, 108 N.E.2d 673. 14 N.Y.Const., Art. I, § 6. 15 N.Y.Code Crim.Proc., § 395. Prior to 1881, coerced confessions were excluded under common-law doctrines of evidence. See People v. Mondon, 103 N.Y. 211, 8 N.E. 496; People v. McMahon, 15 N.Y. 384. 16 N.Y.Code Crim.Proc., § 528. 17 The jury were instructed as follows: 'Ladies and gentlemen, there have been received in evidence statements alleged to have been made by the defendant Calman Cooper and the defendant Harry A. Stein. It is the contention of the People that these statements are in the nature of confessions and that they were made freely and voluntarily. On the other hand, it is the contention made on behalf of the defendant Calman Cooper and on behalf of the defendant Harry A. Stein that these alleged confessions are valueless as evidence against either of them, because it is contended on behalf of each of these defendants that these statements were made because of force and intimidation and fear visited upon each of them by certain members of the state police and implied coercion because of the manner in which they were kept in custody from the time of apprehension until the alleged confessions were made. You must find beyond a reasonable doubt that these confessions, or either of them, was a voluntary one before you would have a right to consider either of them. 'I charge you that the law of this State with respect to a confession is this, that a confession made by a defendant, whether in the course of a judicial proceeding or to a private person, can be given in evidence against him unless made under the influence of fear produced by threats * * *.' The judge further instructed them that if they found that the confessions were voluntary they were then to consider whether their contents, or any part of them, were true. The jury also was instructed that they should not consider a statement by one defendant as any evidence of guilt against any other defendant. These portions of the court's charge were not objected to. For the first time, the petitioners here claim that this charge set forth the requirements for voluntariness under state law, but did not set forth the requirements for voluntariness under the Fourteenth Amendment. They construe the court's charge as instructing the jury that 'implied coercion' does not make a confession involuntary. We do not agree with their construction of the charge, and the fact that no objection was made to it indicates that they did not so construe it at the time it was made. In any event, failure to object made the matter unavailable here. 18 N.Y.Code Crim.Proc. § 465. 19 See People v. Trybus, 219 N.Y. 18, 113 N.E. 538. 20 As was done, without success, in Witt v. United States, 9 Cir., 196 F.2d 285. In Witt, the defendant had testified in the absence of the jury—as he could under federal procedure—as to the voluntariness of a confession. After the court had determined that it was admissible, the defendant sought to testify further on the same subject in the presence of the jury, but requested an order in advance from the court that if he did so cross-examination would be restricted to what had been said on direct. The court refused to so order, and defendant refrained from taking the stand. See also Raffel v. United States, 271 U.S. 494, 497, 46 S.Ct. 566, 567, 70 L.Ed. 1054. 21 Petitioners' prior convictions were as follows: COOPER 1928 Waycross, Ga. Auto Theft Probation 2 years. 1930 Norfolk, Va. Auto theft Atlanta 3 years. 1934 Brooklyn, N. Y. Attemped grand ---- 3 years larceny. (suspended). 1934 Brooklyn, N. Y. Murder Sing Sing 20 years to life. 1948 U. S. Court, N.Y.C. Dyer Act Lewisburg 3 years. STEIN 1918 New York Grand Larceny ---- Sentence suspended. 1918 New York Petty Larceny ---- Sentence suspended. 1921 Bronx, N. Y. Robbery Sing Sing 10 years. 1931 New York Robbery Sing Sing 25 years. 1933 U. S. Court, N.Y.C. Perjury Lewisburg 2 years. WISSNER 1928 Brooklyn, N. Y. Attemped Reform robbery. School, Elmira, N.Y. 1934 Westchester, Co. Robbery Sing Sing 15 years. 22 See cases cited in 3 Wigmore on Evidence (3d ed.) § 861. 23 See Annotation in 148 A.L.R. 546. Cf. United States v. Carignan, 342 U.S. 36, 38, 72 S.Ct. 97, 98, 96 L.Ed. 48, for the rule in federal courts. 24 The Texas Court of Criminal Appeals in Newman v. State, 148 Tex.Cr.R. 645, 651—652, 187 S.W.2d 559, 562—563, said: 'The voluntary or involuntary character of a confession is determined by a conclusion as to whether the accused at mental freedom to confess or to deny a mental freedom to confess or to deny a suspected participation in a crime and to determine which the Supreme Court of the United States will itself make an independent examination of the facts and, from that examination, reach a conclusion based upon what it finds to be the conceded and uncontroverted facts. '* * * (T)here is no escape from the conclusion that the Supreme Court of the United States has potential jurisdiction in all State cases where it is claimed by the accused that the conviction was based upon his involuntary confession. 'Such being true, the position this Court occupies in relation to such cases is both unique and difficult—unique, in that by the Constitution and the laws of this State, Const. Art. 5, sec. 5, Vernon's Ann.St.; Art. 812, C.C.P., we are the court of last resort in criminal cases. If we reach a conclusion that the confession was involuntary, such conclusion is binding upon the State and society, for under our Constitution, Art. 5, sec. 26, the State is expressly denied the right of appeal in a criminal case and is therefore barred from seeking a review of that conclusion by the Supreme Court. On the other hand, if we conclude that the confession was voluntary, such conclusion is in no sense final, binding the accused only until reviewed by the Supreme Court of the United States.' 25 See People v. Barbato, 254 N.Y. 170, 172 N.E. 458. 26 N.Y.Code Crim.Proc. § 618b; cf. Fed.Rules Crim.Proc., 46(b), 18 U.S.C.A. 27 Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192. 28 Lisenba v. People of State of California, supra, 314 U.S. at pages 229, 239, 62 S.Ct. at pages 286, 291. 29 An officer testified that, subsequent to his confession, 'He (Stein) said, 'That rotten —- —- —- —- Cooper, it is hard to believe he would put me in the way he did; he put me right into the * * *' (continuing)—into the seat; I was the best friend he ever had; well, if I must go, I will take him with me.' 30 Under New York law, a defendant must be promptly taken before a magistrate, Code of Criminal Procedure § 165, and failure to do so renders the arresting officer liable to criminal prosecution. N.Y. Penal Law § 1844. 31 Under New York law, the fact that a confession was given during a period of illegal detention is one factor to be considered in determining whether or not it was voluntary; but it does not make the confession inadmissible per se. People v. Trybus, 219 N.Y. 18, 113 N.E. 538; People v. Mummiani, 258 N.Y. 394, 180 N.E. 94. 32 Admissibility in federal courts is governed by 'principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.' Fed.Rules Crim.Proc., 26, 18 U.S.C.A. 33 Compare McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, with Stroble v. State of California, 343 U.S. 181, 197, 72 S.Ct. 599, 607, 96 L.Ed. 872; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, with Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, and Weiss v. United States, 308 U.S. 321, 329, 60 S.Ct. 269, 272, 84 L.Ed. 298, with Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232. See also United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48. 34 N.Y.Const., Art. I, § 6. 35 Bram v. United States, 168 U.S. 532, at page 541, 18 S.Ct. 183, at page 186, 42 L.Ed. 568, has been cited as authority, for the proposition that an inadmissible confession automatically requires reversal, because of this language: 'Having been offered as a confession, and being admissible only because of that fact, a consideration of the measure of proof which resulted from it does not arise in determining its admissibility. If found to have been illegally admitted, reversible error will result, since the prosecution cannot on the one hand, offer evidence to prove guilt, and which by the very offer is vouched for as tending to that end, and on the other hand, for the purpose of avoiding the consequence of the error caused by its wrongful admission, be heard to assert that the matter offered as a confession was not prejudicial, because it did not tend to prove guilt.' But the language, while superficially applicable to the question at hand, was addressed to no such problem in the Bram case. There the prosecution had introduced into evidence a conversation between an illegally held and uncounseled prisoner and a detective in which the prisoner stated, in reply to an allegation that one 'X' had seen the prisoner commit a crime from his vantage point at a ship's wheel, that 'he (X) could not see me from there.' The Government took the position in the Bram case that this statement, even if not voluntary, was not a confession, since its author purported to deny, not admit, guilt. The quoted language of the Court is the answer to this position. As the Court points out, the evidence was introduced on the theory that it tended to admit guilt, and only on that theory would it have been admissible. It therefore must be treated as a confession. The sentences immediately preceding the quoted language brings this out: 'It is manifest that the sole ground upon which the proof of the conversation was tendered was that it was a confession, as this was the only conceivable hypothesis upon which it could have been legally admitted to the jury. It is also clear that, in determining whether the proper foundation was laid for its admission, we are not concerned with how far the confession tended to prove guilt.' Thus, Bram merely decided that a confession otherwise erroneous could not be used merely because the defendant claimed that it did not incriminate him. This is precisely what this Court subsequently held in White v. State of Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342. In any event, the Bram case was a federal case where we exercised supervisory power rather than merely enforced the Fourteenth Amendment. It is not a rock upon which to build constitutional doctrine. According to Wigmore (3d ed., Vol. 3, pp. 240—241, n. 2), this decision represents 'the height of absurdity in misapplication of the law,' and has been discredited by subsequent cases. 36 N.Y.Code Crim.Proc. § 542. 37 Fed.Rules Crim.Proc., 52(a). 38 "It was intended to prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination." Petitioner Wissner erroneously assumes that 'It' at the beginning of the sentence refers to the Fourteenth Amendment. 39 Snyder involved a contention by a state convict that he was denied due process when the court prevented him from going along when the jury went to view the area where the crime was committed. Among the many bases for deciding against the defendant, the Court, through Mr. Justice Cardozo, pointed out that even if he had a federal right to confrontation (and the Court indicated he did not) his exclusion from a view would not offend it. Hence the use of the language quoted describing the nature of the right of confrontation. 40 'For present purposes we assume that the privilege is reinforced by the Fourteenth Amendment, though this has not been squarely held. (Citing cases, one of which is West v. State of Louisiana)', 291 U.S. at page 106, 54 S.Ct. at page 332. 41 See Hall, Police and Laws in a Democratic Society, 28 Ind.L.J. 133, 175—176; Inbau, The Confession Dilemma in the United States Supreme Court, 43 Ill.L.Rev. 442. * I do not understand that West v. State of Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965, held the contrary. It did hold 194 U.S. at pages 263—264, 24 S.Ct. at page 652, that a state could introduce depositions for the reason that the accused had 'been once confronted with the witness, and has had opportunity to cross-examine him * * *, and he is a nonresident and is permanently beyond the jurisdiction of the state * * *.' * The great weight to be attached to the findings of the Wickersham Commission is attested by the impressive experience represented by the members of that Commission. The Chairman, George W. Wickersham, was one of the most notable Attorneys General in the history of that office; Newton D. Baker, after a distinguished public career as Mayor of Cleveland and Secretary of War, became a recognized leader of our bar; William I. Grubb had a long career as one of the most esteemed judges on the federal bench; William S. Kenyon served with distinction first as a United States Senator and later as a federal judge; Monte M. Lemann contributed the balanced judgment derived from his recognized position at the bar; Frank L. Loesch, apart from his general qualifications, brought to the work of the Commission specialized competence in the administration of the criminal law; Paul J. McCormick was a United States district judge of conspicuous courage and hardheadedness; Dean Roscoe Pound's 'Criminal Justice in America' is only one bit of evidence of the authority with which he speaks in this field. * From the undisputed facts it seems clear that these confessions would be condemned if the constitutional school of thought which prevailed when Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810, and Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815, were decided still was the dominant one.
01
346 U.S. 249 73 S.Ct. 1031 97 L.Ed. 1586 BARROWS et al.v.JACKSON. No. 517. Argued April 28, 29, 1953. Decided June 15, 1953. [Syllabus from pages 249-251 intentionally omitted] Mr. J. Wallace McKnight, Los Angeles, Cal., for petitioners. Mr. Loren Miller, Los Angeles, Cal., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 This Court held in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, that racial restrictive covenants could not be enforced in equity against Negro purchasers because such enforcement would constitute state action denying equal protection of the laws to the Negroes, in violation of the Fourteenth Amendment to the Federal Constitution. The question we now have is: Can such a restrictive covenant be enforced at law by a suit for damages against a co-covenantor who allegedly broke the covenant? 2 Petitioners1 sued respondent at law for damages for breach of a restrictive covenant the parties entered into as owners of residential real estate in the same neighborhood in Los Angeles, California. The petitioners' complaint alleged in part: 3 'That by the terms of said Agreement each of the signers promised and agreed in writing and bound himself, his heirs, executors, administrators, successors, and assigns, by a continuing covenant that no part of his said real property, described therein, should ever at any time be used or occupied by any person or persons not wholly of the white or Caucasian race, and also agreed and promised in writing that this restriction should be incorporated in all papers and transfers of lots or parcels of land hereinabove referred to; provided, however, that said restrictions should not prevent the employment by the owners or tenants of said real property of domestic servants or other employees who are not wholly of the white or Caucasian race; provided, further, however, that such employees shall be permitted to occupy said real property only when actively engaged in such employment. That said Agreement was agreed to be a covenant running with the land. That each provision in said Agreement was for the benefit for all the lots therein described.' 4 The complaint further alleged that respondent broke the covenant in two respects: (1) by conveying her real estate without incorporating in the deed the restriction contained in the covenant; and (2) by permitting non-Caucasians to move in and occupy the premises. The trial court sustained a demurrer to the complaint, the District Court of Appeals for the Second Appellate District affirmed, 112 Cal.App.2d 534, 247 P.2d 99, and the Supreme Court of California denied hearing. We granted certiorari, 345 U.S. 902, 73 S.Ct. 644, because of the importance of the constitutional question involved and to consider the conflict which has arisen in the decisions of the state courts since our ruling in the Shelley case, supra. Like the California court in the instant case, the Supreme Court of Michigan sustained the dismissal of a claim for damages for breach of a racial restrictive covenant, Phillips v. Naff, 332 Mich. 389, 52 N.W.2d 158. See also Roberts v. Curtis, D.C., 93 F.Supp. 604. The Supreme Court of Missouri reached a contrary result, Weiss v. Leaon, 359 Mo. 1054, 225 S.W.2d 127, while the Supreme Court of Oklahoma has held that a claim for damages may be maintained against a white seller, an intermediate straw man, and a non-Caucasian purchaser for a conspiracy to violate the covenant, Correll v. Earley, 205 Okl. 366, 237 P.2d 1017. 5 The trial court in the case here held a party to a covenant restricting use and occupancy2 of real estate to Caucasians could not maintain a suit at law against a co-covenantor for breach of the covenant because of our ruling in Shelley, supra. In Shelley, this Court held that the action of the lower courts in granting equitable relief in the enforcement of such covenants constituted state action denying to Negroes, against whom the covenant was sought to be enforced, equal protection of the laws in violation of the Fourteenth Amendment. This Court said: 6 'We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as a violation of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated. * * *' 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161. 7 That is to say, the law applicable in that case did not make the covenant itself invalid, no one would be punished for making it, and no one's constitutional rights were violated by the covenantor's voluntary adherence thereto. Such voluntary adherence would constitute individual action only. When, however, the parties cease to rely upon voluntary action to carry out the covenant and the State is asked to step in and give its sanction to the enforcement of the covenant, the first question that arises is whether a court's awarding damages constitutes state action under the Fourteenth Amendment. To compel respondent to respond in damages would be for the State to punish her for her failure to perform her covenant to continue to discriminate against non-Caucasians in the use of her property. The result of that sanction by the State would be to encourage the use of restrictive covenants. To that extent, the State would act to put its sanction behind the covenants. If the State may thus punish respondent for her failure to carry our her covenant, she is coerced to continue to use her property in a discriminatory manner, which in essence is the purpose of the covenant. Thus, it becomes not respondent's voluntary choice but the State's choice that she observe her covenant or suffer damages. The action of a state court at law to sanction the validity of the restrictive covenant here involved would constitute state action as surely as it was state action to enforce such covenants in equity, as in Shelley, supra. 8 The next question to emerge is whether the state action in allowing damages deprives anyone of rights protected by the Constitution. If a state court awards damages for breach of a restrictive covenant, a prospective seller of restricted land will either refuse to sell to non-Caucasians or else will require non-Caucasians to pay a higher price to meet the damages which the seller may incur. Solely because of their race, non-Caucasians will be unable to purchase, own, and enjoy property on the same terms as Caucasians. Denial of this right by state action deprives such non-Caucasians, unidentified but identifiable, of equal protection of the laws in violation of the Fourteenth Amendment. See Shelley, supra. 9 But unlike Shelley, supra, no non-Caucasian is before the Court claiming to have been denied his constitutional rights. May respondent, whom petitioners seek to coerce by an action to pay damages for her failure to honor her restrictive covenant, rely on the invasion of the rights of others in her defense to this action? 10 Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party. Reference to this rule is made in varied situations. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149—154, 71 S.Ct. 624, 636 639, 95 L.Ed. 817 (concurring opinion). The requirement of standing is often used to describe the constitutional limitation on the jurisdiction of this Court to 'cases' and 'controversies.' See Coleman v. Miller, 307 U.S. 433, 464, 59 S.Ct. 972, 986, 83 L.Ed. 1385 (concurring opinion). Apart from the jurisdictional requirement, this Court has developed a complementary rule of self-restraint for its own governance (not always clearly distinguished from the constitutional limitation) which ordinarily precludes a person from challenging the constitutionality of state action by invoking the rights of others. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (concurring opinion). The common thread underlying both requirements is that a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation.3 This principle has no application to the instant case in which respondent has been sued for damages totaling $11,600, and in which a judgment against respondent would constitute a direct, pocketbook injury to her. 11 There are still other cases in which the Court has held that even though a party will suffer a direct substantial injury from application of a statute, he cannot challenge its constitutionality unless he can show that he is within the class whose constitutional rights are allegedly infringed. Bode v. Barrett, 344 U.S. 583, 585, 73 S.Ct. 468, 470; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576, 35 S.Ct. 167, 169, 59 L.Ed. 364; People of State of New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160 161, 27 S.Ct. 188, 190, 51 L.Ed. 415; see also Tennessee Elec. Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 144, 59 S.Ct. 366, 372, 83 L.Ed. 543.4 One reason for this ruling is that the state court, when actually faced with the question, might narrowly construe the statute to obliterate the objectionable feature, or it might declare the unconstitutional provisions separable. People of State of New York ex rel. Hatch v. Reardon, supra, 204 U.S. at pages 160—161, 35 S.Ct. at pages 190—191, 59 L.Ed. 364; Wuchter v. Pizzutti, 276 U.S. 13, 26—28, 48 S.Ct. 259, 263—264, 72 L.Ed. 446 (dissenting opinion). It would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. Nor are we so ready to frustrate the expressed will of Congress or that of the state legislatures. Cf. Southern Pacific Co. v. Gallagher, 306 U.S. 167, 172, 59 S.Ct. 389, 391, 83 L.Ed. 586. 12 This is a salutary rule, the validity of which we reaffirm. But in the instant case, we are faced with a unique situation in which it is the action of the state court which might result in a denial of constitutional rights and in which it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court. Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denying standing to raise another's rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained. Cf. Quong Ham Wah Co. v. Industrial Acc. Comm., 184 Cal. 26, 192 P. 1021, 12 A.L.R. 1190. 13 In other unique situations which have arisen in the past, broad constitutional policy has led the Court to proceed without regard to its usual rule. In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, a state statute required all parents (with certain immaterial exceptions) to send their children to public schools. A private and a parochial school brought suit to enjoin enforcement of the act on the ground that it violated the constitutional rights of parents and guardians. No parent or guardian to whom the act applied was a party or before the Court. The Court held that the act was unconstitutional because it 'unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.' Pierce v. Society of Sisters, supra, 268 U.S. at pages 534—535, 45 S.Ct. at page 573. In short the schools were permitted to assert in defense of their property rights and constitutional rights of the parents and guardians. See also Joint Anti-Fascist Refugee Comm. v. McGrath, supra, 341 U.S. at pages 141, 153—154, 71 S.Ct. at pages 632, 638, 639, 95 L.Ed. 817; Columbia Broadcasting System v. United States, 316 U.S. 407, 422 423, 62 S.Ct. 1194, 1202, 1203, 86 L.Ed. 1563; Helvering v. Gerhardt, 304 U.S. 405, 58 S.Ct. 969, 82 L.Ed. 1427; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; United States v. Railroad Co., 17 Wall. 322, 21 L.Ed. 597; Quong Ham Wah Co. v. Industrial Acc. Comm., supra; cf. United States v. Jeffers, 342 U.S. 48, 52, 72 S.Ct. 93, 95, 96 L.Ed. 59; Federal Communications Comm. v. Sanders Brothers Radio Station, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037; Wuchter v. Pizzutti, supra. 14 There is such a close relationship between the restrictive covenant here and the sanction of a state court which would punish respondent for not going forward with her covenant, and the purpose of the covenant itself, that relaxation of the rule is called for here. It sufficiently appears that mulcting in damages of respondent will be solely for the purpose of giving vitality to the restrictive covenant, that is to say, to punish respondent for not continuing to discriminate against non-Caucasians in the use of her property. This Court will not permit or require California to coerce respondent to respond in damages for failure to observe a restrictive covenant that this Court would deny California the right to enforce in equity, Shelley, supra; or that this Court would deny California the right to incorporate in a statute, Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; or that could not be enforced in a federal jurisdiction because such a covenant would be contrary to public policy: 15 'It is not consistent with the public policy of the United States to permit federal courts in the Nation's capital to exercise general equitable powers to compel action denied the state courts where such state action has been held to be violative of the guaranty of the equal protection of the laws. We cannot presume that the public policy of the United States manifests a lesser concern for the protection of such basic rights against discriminatory action of federal courts than against such action taken by the courts of the States.' Hurd v. Hodge, 344 U.S. 24, 35—36, 68 S.Ct. 847, 853, 92 L.Ed. 1187. See also Roberts v. Curtis, supra. 16 Consistency in the application of the rules of practice in this Court does not require us in this unique set of circumstances to put the State in such an equivocal position simply because the person against whom the injury is directed is not before the Court to speak for himself. The law will permit respondent to resist any effort to compel her to observe such a covenant, so widely condemned by the courts, since she is the one in whose charge and keeping reposes the power to continue to use her property to discriminate or to discontinue such use. The relation between the coercion exerted on respondent and her possible pecuniary loss thereby is so close to the purpose of the restrictive covenant, to violate the constitutional rights of those discriminated against, that respondent is the only effective adversary of the unworthy covenant in its last stand. She will be permitted to protect herself and, by so doing, close the gap to the use of this covenant, so universally condemned by the courts. 17 Petitioners argue that the right to equal protection of the laws is a 'personal' right, guaranteed to the individual rather than to groups or classes. For instance, discriminatory denial of sleeping and dining-car facilities to an individual Negro cannot be justified on the ground that there is little demand for such facilities by Negroes as a group. McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 161—162, 35 S.Ct. 69, 71, 59 L.Ed. 169. See Sweatt v. Painter, 339 U.S. 629, 635, 70 S.Ct. 848, 850, 94 L.Ed. 1114. This description of the right as 'personal,' when considered in the context in which it has been used, obviously has no bearing on the question of standing. Nor do we violate this principle by protecting the rights of persons not identified in this record. For instance, in the Pierce case, the persons whose rights were invoked were identified only as 'present and prospective patrons' of the two schools. Pierce v. Society of Sisters, supra, 268 U.S. at page 535, 45 S.Ct. at page 573, 69 L.Ed. 1070. In the present case, it is not non-Caucasians as a group whose rights are asserted by respondent, but the rights of particular non-Caucasian would-be users of restricted land. 18 It is contended by petitioners that for California courts to refuse to enforce this covenant is to impair the obligations of their contracts. Article I, § 10, of the Federal Constitution provides: 'No State shall * * * pass any * * * Law impairing the Obligation of Contracts * * *.' The short answer to this contention is that this provision, as its terms indicate, is directed against legislative action only. 19 'It has been settled by a long line of decisions, that the provision of section 10, article 1, of the federal Constitution, protecting the obligation of contracts against state action, is directed only against impairment by legislation and not by judgments of courts. * * *' Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451, 44 S.Ct. 197, 198, 68 L.Ed. 382. 20 It is finally contended that petitioners are denied due process and equal protection of the laws by the failure to enforce the covenants. The answer to that proposition is stated by the Court in Shelley, supra, in these words: 21 'The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals. * * *' 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161. 22 The judgment is affirmed. 23 Affirmed. 24 Mr. Justice REED and Mr. Justice JACKSON took no part in the consideration or decision of this case. 25 Mr. Chief Justice VINSON, dissenting. 26 This case, we are told, is 'unique.' I agree with the characterization. The Court, by a unique species of arguments, has developed a unique exception to an otherwise easily understood doctrine. While I may hope that the majority's use of 'unique' is but another way of saying that the decision today will be relegated to its precise facts tomorrow, I must voice my dissent. 27 The majority seems to recognize, albeit ignore, a proposition which I thought was made plain in the Shelley case.1 That proposition is this: these racial restrictive covenants, whatever we may think of them, are not legal nullities so far as any doctrine of federal law is concerned; it is not unlawful to make them; it is not unlawful to enforce them unless the method by which they are enforced in some way contravenes the Federal Constitution or a federal statute. 28 Thus, in the Shelley case, it was not the covenants which were struck down but judicial enforcement of them against Negro vendees. The question which we decided was simply whether a state court could decree the ouster of Negroes from property which they had purchased and which they were enjoying. We held that it could not. We held that such judicial action, which operated directly against the Negro petitioners and deprived them of their right to enjoy their property solely because of their race, was state action and constituted a denial of 'equal protection.'2 29 This case is different. 30 The majority identifies no non-Caucasian who has been injured or could be injured if damages are assessed against respondent for breaching the promise which she willingly and voluntarily made to petitioners, a promise which neither the federal law nor the Constitution proscribes. Indeed, the non-Caucasian occupants of the property involved in this case will continue their occupancy undisturbed, regardless of the outcome of the suit. The state court was asked to do nothing which would impair their rights or their enjoyment of the property. 31 The plain, admitted fact that there is no identifiable non-Caucasian before this Court who will be denied any right to buy, occupy or otherwise enjoy the properties involved in this lawsuit, or any other particular properties, is decisive to me. It means that the constitutional defect, present in the Shelley case, is removed from this case. It means that this Court has no power to deal with the constitutional issue which respondent seeks to inject in this litigation as a defense to her breach of contract. It means that the covenant, valid on its face, can be enforced between the parties—unless California law or California policy forbids its enforcement—without running afoul of any doctrine ever promulgated by this Court, without any interference from this Court. 32 I turn, first, to the matter of our power to decide this case. The majority states the issue: 33 '* * * May erspondent, whom petitioners seek to coerce by an action to pay damages for her failure to honor her restrictive covenant, rely on the invasion of the rights of others in her defense to this action?' 34 Logically this issue should be met where such an issue is usually met—at the 'threshold';3 this decision should precede any discussion of the merits of respondent's constitutional claim. Yet it is not amiss to point out that the majority has failed to put first things first; it decides the merits and then, comforted by its decision on the merits, resolves its doubts that it has power to decide the merits. 35 A line of decisions—long enough to warrant the respect of even the most hardened skeptic of the strength of stare decisis as an effective limitation upon this Court's exercise of jurisdiction in constitutional cases—establishes the principle4 which should stay this Court from deciding what it decides today—from doing what it does today—from imposing a novel constitutional limitation upon the power of the courts of the several states to enforce their own contract laws as they choose. This deep-rooted, vital doctrine demands that the Court refrain from deciding a constitutional issue until it has a party before it was has standing to raise the issue.5 The majority agrees that this is a 'salutary' principle, and supplies us with but a small sampling of the cases to show that it has been rigorously applied in many varied situations, and surely no sophistry is required to apply it to this case. Accordingly, respondent must show, at the outset, that she, herself, and not some unnamed person in an amorphous class, is the victim of the unconstitutional discrimination of which she complains.6 36 Respondent makes no such showing. She does not ask the Court to protect her own constitutional rights, nor even the rights of the persons who now occupy her property. Instead, she asks the Court to protect the rights of those non-Caucasians—whoever they may be—who might, at some point, be prospective vendees of some other property encumbered by some other similar covenant. Had respondent failed to designate herself as the agent of this anonymous, amorphous class, the majority certainly would have no power to vindicate its rights. Yet, because respondent happens to have decided to act as the self-appointed agent of these principals whom she cannot identify—in order to relieve herself of the obligations of her own covenant—the majority finds itself able to assert the power over state courts which it asserts today. I do not think that such tenuous circumstances can spawn the broad constitutional limitation upon state courts which springs from today's decision.7 37 Yet we are told that the rule which restricts our power to impose this constitutional limitation is but a rule of 'self restraint.' So is every other jurisdictional limitation which depends, in the last analysis, solely upon this Court's willingness to govern its own exercise of power. And certainly to characterize the rule as self imposed does not mean that it is self-removable by a simple self-serving process of argument. Yet the majority's logic, reduced to its barest outlines, seems to proceed in that fashion. We are told that the reasons for the self-imposed rule, which precludes us from reaching the merits, have been dissipated in this case, but the only reason why the reasons do not exist is because the Court first holds for respondent, and, having thus decided the merits it feels free to abandon the rule which should preclude it from reaching the merits. In my view, respondent cannot surmount the hurdle of our well-established rule by proceeding with an argument which carrries her in a circle right back to her precise point of departure. If it should be, as the majority assumes, that there is no other way that the rights of unidentified non-Caucasians can be vindicated in court, that is only an admission that there is no way in which a substantial case or controversy can be predicated upon the right which the majority is so anxious to pass upon. I cannot assent to a manner of vindicating the constitutional rights of persons unknown, which puts personal predisposition in a paramount position over well-established proscriptions on power. 38 But even if the merits are to be reached, even if we must decide whether enforcement of this covenant in a lawsuit of this kind is state action which contravenes the Fourteenth Amendment, I think that the absence of any direct injury to any identifiable non-Caucasian is decisive. The Shelley case, resting on the express determination that restrictive covenants are valid between the parties, dealt only with a state court's attempt to enforce them directly against innocent third parties whose right to enjoy their property would suffer immediate harm. 39 In this case, the plaintiffs have not sought such relief. The suit is directed against the very person whose solemn promise helped to bring the covenant into existence. The plaintiffs ask only that respondent do what she in turn had a right to ask of plaintiffs—indemnify plaintiffs for the bringing about of an event which she recognized would cause injury to the plaintiffs. We need not concern ourselves now with any question of whether this injury is fancied or real. The short of that matter is that the parties thought that any influx of non-Caucasian neighbors would impair their enjoyment of their properties, and, whether right or wrong, each had the right to control the use of his property against that event and to exact a promise from his or her neighbor that he or she would act accordingly. And that is precisely what petitioners and respondent did. Moreover, we must, at this pleading stage of the case, accept it as a fact that respondent has thus far profited from the execution of this bargain; observance of the covenant by petitioners raised the value of respondent's properties. By this suit, the plaintiffs sought only to have respondent disgorge that which was gained at the expense of depreciation in her neighbors' property. 40 The majority speaks of this as an attempt to 'coerce' respondent to continue to abide by her agreement. Yet the contract has already been breached. The non-Caucasians are in undisturbed occupancy. Furthermore, the respondent consented to the 'coercion' if 'coercion' there be—by entering into the covenant. Plaintiffs ask only that respondent now pay what she legally obligated herself to pay for an injury which she recognized would occur if she did what she did. 41 Of course, there may be other elements of coercion. Coercion might result on the minds of some Caucasian property owners who have signed a covenant such as this, for they may now feel an economic compulsion to abide by their agreements. But visiting coercion upon the minds of some unidentified Caucasian property owners is not at all the state action which was condemned in the Shelley case. In that case, the state court had directed 'the full coercive power of government' against the Negro petitioners forcefully removing them from their property because they fell in a class discriminatorily defined. But in this case, where no identifiable third person can be directly injured if respondent is made to disgorge enough to indemnify petitioners, the Court should not undertake to hold that the Fourteenth Amendment stands as a bar to the state court's enforcement of its contract law. 42 Obviously we can only interfere in this case if the Fourteenth Amendment compels us to do so, for that is the only basis upon which respondent seeks to sustain her defense. While we are limited to enforcement of the Fourteenth Amendment, the state courts are not; they may decline to recognize the covenants for other reasons. Since we must rest our decision on the Constitution alone, we must set aside predilections on social policy and adhere to the settled rules which restrict the exercise of our power of judicial review—remembering that the only restraint upon this power is our own sense of self-restraint.8 43 Because I cannot see how respondent can avail herself of the Fourteenth Amendment rights of total strangers—the only rights which she has chosen to assert—and since I cannot see how the Court can find that those rights would be impaired in this particular case by requiring respondent to pay petitioners for the injury which she recognizes that she has brought upon them, I am unwilling to join the Court in today's decision. 1 Petitioner Pikaar was not a signer of the covenant but is successor in interest of a signer. 2 There is no question of restraint of sale here, as agreements restraining sale of land to members of defined racial groups have long been held unenforceable in California because they contravened the State's statutory rule and public policy against restraints on alienation. Wayt v. Patee, 205 Cal. 46, 269 P. 660; Title Guarantee & Trust Co. v. Garrott, 42 Cal.App. 152, 183 P. 470. 3 See Frothingham v. Mellon, 262 U.S. 447, 486—489, 43 S.Ct. 597, 600—601, 67 L.Ed. 1078 (federal taxpayer sought to challenge a federal statute in the enforcement of which federal revenues were applied); Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (state taxpayer unable to show that there was 'a measurable appropriation or disbursement of * * * funds occasioned solely by the (state) activities complained of'); Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (doctor sought a declaratory judgment that a state statute would deprive certain of his patients of their lives without due provess of law); Tyler v. The Judges, 179 U.S. 405, 410, 21 S.Ct. 206, 208, 45 L.Ed. 252 (landowner sought to challenge the notice provisions for a land registration proceeding in which he had not made himself a party, although he had notice of the proceedings, and even though 'his interest in the land would remain unaffected' if the act were subsequently declared unconstitutional); Gange Lumber Co. v. Rowley, 326 U.S. 295, 66 S.Ct. 125, 90 L.Ed. 85; Alabama Power Co. v. Ickes, 302 U.S. 464, 478—480, 58 S.Ct. 300, 301—304, 82 L.Ed. 374; cf. McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 162—164, 35 S.Ct. 69, 71—72, 59 L.Ed. 169 (four Negroes who sought to enjoin enforcement of discriminatory state action denied relief on the ground that they failed to allege that they themselves had suffered, or were about to suffer, discriminatory treatment for which there was no adequate remedy at law). And compare Doremus v. Board of Education, supra, with Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 206, 234, 68 S.Ct. 461, 462—476, 92 L.Ed. 649. 4 Cf. Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312; Hale v. Henkel, 201 U.S. 43, 69—70, 26 S.Ct. 370, 376—377, 50 L.Ed. 652, and the lower court cases which restrict to the person whose premises were invaded the right to have illegally-seized evidence excluded. The rights in these cases are obviously closely linked to the person of the individual. 1 Shelley v. Kraemer, 1949, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. 2 The state action which we struck down was epitomized in this language, 334 U.S. at page 19, 68 S.Ct. at page 845, 92 L.Ed. 1161: 'We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint. 'These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. * * *' 3 Compare Montgomery Building & Construction Trades Council v. Ledbetter Erection Co., 1952, 344 U.S. 178, 179, 73 S.Ct. 196; United Public Workers v. Mitchell, 1947, 330 U.S. 75, 86, 67 S.Ct. 556, 562, 91 L.Ed. 754. 4 The principle derives, of course, from the nature of the judicial power conferred by Art. III of the Constitution. At a very early stage in this Court's history, Chief Justice Marshall put the matter thus: '* * * The article does not extend the judicial power to every violation of the constitution which may possibly take place, but to 'a case in law or equity,' in which a right, under such law, is asserted in a Court of justice. If the question cannot be brought into a Court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. * * *' Cohens v. Virginia, 1821, 6 Wheat. 264, 405, 5 L.Ed. 257. And see the discussion of this principle and its ramifications in Mr. Justice Brandeis' concurring opinion in Ashwander v. Tennessee Valley Authority, 1936, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688. 5 Mr. Justice Frankfurter, concurring in Coleman v. Miller, 1939, 307 U.S. 433, 461, 59 S.Ct. 972, 985, 986, 83 L.Ed. 1385, sets forth the basis of the principle which I believe the Court has failed to observe today: 'In endowing this Court with 'judicial Power' the Constitution presupposed an historic content for that phrase and relied on assumption by the judiciary of authority only over issues which are appropriate for disposition by judges. * * * '* * * It is our ultimate responsibility to determine who may invoke our judgment and under what circumstances. * * * The scope and consequences of our doctrine of judicial review over executive and legislative action should make us observe fastidiously the bounds of the litigious process within which we are confined. No matter how seriously infringement of the Constitution may be called into question, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate, apart from a political concern which belongs to all. Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed. 475; Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 11 L.Ed. 499. 'We can only adjudicate an issue as to which there is a claimant before us who has a special, individualized stake in it. One who is merely the self-constituted spokesman of a constitutional point of view can not ask us to pass on it. * * *' 6 Tyler v. Judges of the Court of Registration, 1900, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252, while not the first, is generally cited as the leading case on this aspect of the rules governing our exercise of jurisdiction. The Court said: 'The prime object of all litigation is to establish a right asserted by the plaintiff or to sustain a defense set up by the party pursued. Save in a few instances where, by statute or the settled practice of the courts, the plaintiff is permitted to sue for the benefit of another, he is bound to show an interest in the suit personal to himself, and even in a proceeding which he prosecutes for the benefit of the public, as, for example, in cases of nuisance, he must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens.' 179 U.S. at page 406, 21 S.Ct. at page 207. This historic view has been voiced again and again and applied in various situations down through the decades. See, e.g., Lampasas v. Bell, 1901, 180 U.S. 276, 21 S.Ct. 368, 45 L.Ed. 527; Cronin v. Adams, 1904, 192 U.S. 108, 24 S.Ct. 219, 48 L.Ed. 365; The Winnebago, 1907, 205 U.S. 354, 27 S.Ct. 509, 51 L.Ed. 836; Rosenthal v. People of State of New York, 1912, 226 U.S. 260, 33 S.Ct. 27, 57 L.Ed. 212; McCabe v. Atchison, 1914, 235 U.S. 151, 35 S.Ct. 69, 95 L.Ed. 169; Jeffrey Manufacturing Co. v. Blagg, 1915, 235 U.S. 571, 35 S.Ct. 167, 59 L.Ed. 364; Sprout v. City of South Bend, 1928, 277 U.S. 163, 48 S.Ct. 502, 72 L.Ed. 833; Tileston v. Ullman, 1943, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603; Gange Lumber Co. v. Rowley, 1945, 326 U.S. 295, 66 S.Ct. 125, 90 L.Ed. 85; Bode v. Barrett, 1953, 344 U.S. 583, 73 S.Ct. 468. 7 Similarly, I think that respondent's reliance, in her brief, on Buchanan v. Warley, 1917, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, as a precedent to show that she has met the minimum requirements on standing, is misplaced. In that case, a white vendor attacked a zoning ordinance which prohibited the sale of his property to any Negroes. The Court held he had standing to attack the ordinance since his constitutional attack was founded on the theory that the ordinance unconstitutionally abridged his right to sell his property to any willing purchaser, and not on the theory that it abridged the Negro vendee's right to buy property without being subject to discrimination by the state. The Court then held the statute invalid as an unreasonable classification. Similarly, in Pierce v. Society of Sisters, 1925, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, upon which the majority relies, a private school challenged a state law forbidding private education on the theory that the statute unreasonably abridged its (the school's) property rights. It was the assertion of the school's property rights which the Court considered in determining the validity of the statute. 8 See Mr. Justice Stone dissenting in United States v. Butler, 1936, 297 U.S. 1, 78—79, 56 S.Ct. 312, 324—325, 80 L.Ed. 477.
12
346 U.S. 235 73 S.Ct. 1069 97 L.Ed. 1575 UNITED STATESv.GRAINGER. UNITED STATES v. CLAVERE et al. (two cases). Nos. 634 to 636. Argued May 4 and 5, 1953. Decided June 15, 1953. Mr. John F. Davis, Washington, D.C., for appellant. Mr. Jack J. Miller, Stockton, Cal., for appellee Grainger. Mr. John V. Lewis, San Francisco, Cal., for appellees Clavere et al. Mr. Justice BURTON delivered the opinion of the Court. 1 These cases were argued immediately following No. 548, Bridges v. United States, 73 S.Ct. 1055. They concern the Wartime Suspension of Limitations Act which we found inapplicable to the offenses stated in the Bridges indictment. These cases, however, involve different offenses and we hold the Suspension Act applicable to the instant indictments for offenses committed in 1945 and 1946 and we hold that the United States may thus prosecute them in 1952.1 2 The principal questions here are: (1) whether the Wartime Suspension of Limitations Act2 suspended the running of the general three-year statute of limitations3 as to violations of the false claims clause of the False Claims Act,4 and (2) if so, whether the indictments for such offenses, found in 1952, were timely. For the reasons hereafter stated, our answer to each question is in the affirmative. 3 These indictments were filed in 1952 in the United States District Court for the Northern District of California. The indictment in No. 634 charges appellee Grainger, in 16 counts, with having 'unlawfully, knowingly, wilfully and fraudulently' presented for payment to the Commodity Credit Corporation, at various times in 1945, claims upon that corporation certifying that appellee had made certain purchases of wool at certain prices, knowing such claims 'to be false, fictitious and fraudulent * * *.' It charges, further, that appellee knowingly and falsely certified to the Commodity Credit Corporation that he had paid higher prices for the wool than he actually did.5 4 The indictment in No. 635 charges appellees Clavere and Kennedy, in 15 counts, with like offenses committed in 1946, including several claims based upon their false certifications of purchases of wool when they knew that they had made no such purchases. 5 The indictment in No. 636 charges appellees Clavere and Kennedy, in one count, with conspiring to make false, fictitious and fraudulent claims upon the Commodity Credit Corporation6 by making somewhat comparable claims in 1946 and 1947. A second count charges appellees Clavere, Kennedy and Shapiro with engaging in a like conspiracy, with overt acts committed in 1946.7 6 Appellees moved to dismiss the indictments on the ground, among others, that each was barred by the applicable statute of limitations. The District Court granted the motions and dismissed the indictments. That court's unreported opinion concludes with the following statement: 7 'Accordingly, the Court holds that, as to all three indictments, the three-year statute of limitations fixed by 18 USC section 582 and its successor, 18 USC (Supp. V) section (3282), applies. Because the statute that the various defendants are charged with having violated or with having conspired to violate does not 'denominate' the acts proscribed therein as 'frauds,' or does not, in so many words, have as an 'ingredient' a 'defrauding or an attempt to defraud the United States,' neither the Wartime Suspension of Limitations Act of 1942 nor its successor of 1948 can apply.' 8 The United States appealed directly to this Court, under 18 U.S.C. (Supp. V) § 3731, 18 U.S.C.A. § 3731.8 9 1. The running of the general three-year statute of limitations9 was suspended by the Wartime Suspension of Limitations Act10 as to violations, in 1945 and 1946, of the false claims clause of the Flase Claims Act.11 10 A. While the offenses charged here are not spelled out in detail, they are sufficiently clear at least to show attempts to obtain payments from the Commodity Credit Corporation in amounts based upon knowingly false certifications to that corporation by the accused that certain purchases of wool had been made by him when he knew that no such purchases had been made by him or, at least, that no such purchases had been made by him at prices as high as those he certified that he paid. The offenses charged are, therefore, of a pecuniary nature and we are not required in these cases to pass upon the contention, discussed in the Bridges case, that, in order for the Suspension Act to apply to them, the offenses not only must involve defrauding the United States or an agency thereof, but they also must be of a pecuniary nature or of a nature concerning property. 11 B. The offenses with which we concern ourselves here are alleged to have occurred in 1945 or 1946. They, therefore, precede the President's proclamation of December 31, 1946, which declared that the hostilities of World War II terminated on that day.12 The offenses thus come within the period to which the Syspension Act applies. United States v. Smith, 342 U.S. 225, 72 S.Ct. 260, 96 L.Ed. 252. 12 C. Fraud upon the United States is an essential ingredient of the offenses charged. The offenses charged in Cases No. 634 and No. 635 are violations of the false claims clause, as distinguished from the false statement clause, of the False Claims Act. Such false claims clause provides that— 13 'Whoever shall * * * present * * * for payment or approval, to * * * any corporation in which the United States of America is a stockholder, any claim upon or against the Government of the United States * * * or any corporation in which the United States of America is a stockholder, knowing such claim to be false, fictitious, or fraudulent * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both.' 52 Stat. 197, 18 U.S.C. § 80, now 18 U.S.C. (Supp. V) § 287, 18 U.S.C.A. § 287. 14 The indictments show that it is the false claims clause that is involved. And, what is more important to the issue here, the offense defined by that clause is the kind of offense at which the Syspension Act is directed. 15 The Suspension Act provides that— 16 'When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not * * * shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.' 18 U.S.C. (Supp. V) § 3287, 18 U.S.C.A. § 3287. 17 In determining the kind of offenses to which that section applies, we have the benefit of the conclusion heretofore reached by this Court that such offenses are limited to those which include fraud as an essential ingredient.13 The next question is what constitutes the required fraud. Our problem is simpler than in the Bridges case and in those cases which involve violations of the false statement clause of the False Claims Act. In those cases there is a question whether the mere making of a false statement in the connection specified necessarily includes the ingredient of fraud required by the Suspension Act. In the instant cases that question is not involved because the offenses include more than that. The substantive offenses here charged include the making of claims upon the Government for payments induced by knowingly false representations—constituting violations of the false claims clause of the False Claims Act. The statement of the offenses here carries with it the charge of inducing or attempting to induce the payment of a claim for money or property involving the element of deceit that is the earmark of fraud.14 The false statement clause contains no such ingredient. The difference between the clauses is emphasized in the 1948 codification which has placed the former in § 287 and the latter in § 1001 of 18 U.S.C.(Supp. V), 18 U.S.C.A. §§ 287, 1001. 18 We conclude that the Wartime Suspension of Limitations Act has added time within which to prosecute the wartime frauds involved in violations of the false claims clause of the False Claims Act. 19 Appellees have placed emphasis also upon the following statement by Mr. Justice Roberts, speaking for the Court, in United States v. Scharton, 285 U.S. 518, 521—522, 52 S.Ct. 416, 417, 76 L.Ed. 917. 20 'Moreover, the concluding clause of the section, though denominated a proviso, is an excepting clause, and therefore to be narrowly construed. United States v. McElvain, 272 U.S. 633, 639, 47 S.Ct. 219 (220) 71 L.Ed. 451. And, as the section has to do with statutory crimes, it is to be liberally interpreted in favor of repose, and ought not to be extended by construction to embrace so-called frauds not so denominated by the statutes creating offenses.' 21 Appellees argue that this language limits the Suspension Act not merely to those offenses in which fraud upon the United States is an essential ingredient, but to such of those offenses as Congress has 'denominated' as 'frauds' by using that very word or, at least, one of its derivatives. 22 We believe that Congress sought by its phrase 'involving fraud * * * in any manner'15 to make the Suspension Act applicable to all offenses which are fairly identifiable as those in which fraud is an essential ingredient, by whatever words they be defined, and that Congress did not seek to limit its applicability to such of those identifiable offenses as also are labeled with a particular symbol. In the false claims clause of the False Claims Act, Congress met the requirement by identifying the offense as that of making 'any claim upon * * * the United States * * * knowing such claim to be false, fictitious, or fraudulent * * *.'16 The combination of either falsity, fiction or fraud with the claim is enough. The same reasoning applies to a conspiracy to make false claims, as alleged in No. 636. 23 2. The Wartime Suspension of Limitations Act extended the time for finding the indictments through 1952. 24 A. The Suspension Act had the effect of extending through 1952 the time for the prosecution of the offenses to which it applied. 25 When enacted August 24, 1942, during the first year of World War II, it provided for the inception and expiration of its effect on existing statutes of limitations as follows: 26 '* * * the running of any existing statute of limitations applicable to offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, and now indictable under any existing statutes, shall be suspended until June 30, 1945, or until such earlier time as the Congress by concurrent resolution, or the President, may designate. * * *' (Emphasis supplied.) 56 Stat. 747—748. 27 There is no doubt as to the meaning of the word 'running' in that enactment. The running of any existing statute of limitations simply was to be suspended until June 30, 1945—that is, for about three years—unless such suspension was cut short by Congress or the President. The obvious purpose was to add about three years (or a shorter wartime period) to the time otherwise available for the prosecution of certain wartime frauds. 28 The present difficulty was introduced by the amendment of July 1, 1944. It added not only specific language as to war contracts but it changed the expiration clause to read— 29 'The running of any existing statute of limitations applicable to any offense * * * (1) involving defrauding * * * the United States * * * or (2) committed in connection with the * * * performance * * * of any contract * * * related to the prosecution of the present war * * * shall be suspended until three years after the termination of hostilities in the present war as proclaimed by the President or by a concurrent resolution of the two Houses of Congress. * * *' (Emphasis supplied.) 58 Stat. 667. 30 The effect of this language, when read with the Act of 1942, is inescapable. The phrase as to 'running of any existing statute of limitations' remains precisely as it was in 1942, but the expiration date of the suspension is changed from June 30, 1945 (or an earlier date to be designated by Congress or the President), to a new date. The new date is not fixed as one to come three years later. It is made a movable date which can occur only three years after the date of the termination of hostilities as proclaimed by the President or Congress. Under the 1942 Act, the running of the general three-year statute was suspended for three years or less. Under the 1944 amendment, the running is just as clearly suspended until three years has expired after the termination of hostilities. 31 The precise language of the July 1, 1944, amendment was reenacted October 3, 1944, when a clause was added dealing with offenses connected with the handling of property under the Surplus Property Act of 1944, 58 Stat. 781. The language was then carried into 18 U.S.C. § 590a. 32 When the President, December 31, 1946, proclaimed the termination of hostilities of World War II, 3 CFR, 1946 Supp. 77 78, thus automatically caused the resumption of the running of statutes of limitations on December 31, 1949. Accordingly, in relation to the instant offenses committed in 1945 and 1946, during the period of suspension, the general three-year limitation prescribed by 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282, began to run for the first time on January 1, 1950, and expired December 31, 1952. 33 United States v. Smith, 342 U.S. 225, 72 S.Ct. 260, 96 L.Ed. 252, held that the offenses to which the Suspension Act applied were only those actually committed before the termination of hostilities December 31, 1946. The length of the period for their prosecution was not there in controversy because the offenses occurred in 1947. That period, however, was mentioned either directly or by implication in the concurring and dissenting opinions published on behalf of a majority of the members of the Court. The following statement was made in the concurring opinion: 34 'These cases clearly illustrate that the suspension statute was not intended to and should not embrace offenses committed subsequent to December 31, 1946. It applies only to offenses committed between August 25, 1939, and December 31, 1946. For those offenses which occurred between the date of the 1942 Act and the cessation of hostilities, Congress' intention was to give the Department of Justice six years from the latter date to investigate and prosecute. For those offenses which occurred before the date of the 1942 Act, Congress' intention was to give the Department three years after the cessation of hostilities plus whatever portion of the regular three-year limitations' period had not yet run when the 1942 Act was passed.' 342 U.S. at page 231, 72 S.Ct. at page 263. 35 This issue was before the Court in No. 527, United States v. Klinger, 2 Cir., 199 F.2d 645, which this day is affirmed by an evenly divided Court, 345 U.S. 979, 73 S.Ct. 1129. In that case, however, there was presented not only this issue but also an issue as to whether the offense charged was one involving fraud of a pecuniary nature upon the United States. 36 B. The codification of the Criminal Code, June 25, 1948, effective September 1, 1948, did not change the situation. It repealed the Suspension Act, as amended October 3, 1944, by reference to it as § 28 of Chapter 479, 58 Stat., and as 18 U.S.C. § 590a. 62 Stat. 862, 868. At the same time, Congress substantially reenacted the Suspension Act as 18 U.S.C.(Supp. V) § 3287, 18 U.S.C.A. § 3287. 62 Stat. 828. The appellees point out that the saving clause in § 21 of the Act of June 25, 1948, 62 Stat. 862, 18 U.S.C.A. note preceding section 1, saves only substantive rights and liabilities then existing under the repealed sections. They suggest also that any extended periods of limitation resulting from the Suspension Act were thus repealed as of September 1, 1948, leaving applicable the general three-year statute of limitations which would terminate the period for prosecution September 1, 1951. We do not agree with that suggestion. The reenactment of the Suspension Act as § 3287, June 25, 1948, effective September 1, 1948, like the reenactment of the general three-year statute of limitations as § 3282, carried with it the purpose of the codification. That purpose makes §§ 3287 and 3282 applicable not merely prospectively to subsequent offenses, but forthwith to existing offenses in the same manner and with the same effect as if the reenacted provisions had remained continuously in effect in their substantially identical precodification form. Codification contemplates, implies and produces continuity of existing law in clarified form rather than its interruption. 37 The motions to dismiss the indictments should have been denied. The judgment of the District Court therefore is reversed and the cause is remanded for further proceedings consistent with this opinion. 38 Reversed and remanded. 39 Mr. Justice BLACK, Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS, adopting the reasoning in the opinion of Judge Learned Hand in United States v. Klinger, 2 Cir., 199 F.2d 645, would affirm the District Court in dismissing these indictments. 40 Mr. Justice JACKSON took no part in the consideration or decision of this case. 1 This conclusion does not apply to any overt act alleged in No. 636 to have been committed in 1947. Any such act was committed after the President's proclamation of the termination of hostilities December 31, 1946, Proclamation No.2714, 50 U.S.C.A.Appendix, § 601 note, 3 CFR, 1946 Supp., 77—78, and therefore, after the period to which the Suspension Act applied. United States v. Smith, 342 U.S. 225, 72 S.Ct. 260, 96 L.Ed. 252. The indictment in No. 636 is not explicit enough as to the overt acts set forth in paragraphs numbered 2, 3 and 4, under Count Two, to show that the issuance or endorsement of certain checks there described constituted an attempt to defraud the United States. The Suspension Act, accordingly, does not appear to be applicable to them. These items have not been separately discussed by the parties, and are mentioned here to avoid the application of our general conclusions to them in the absence of further consideration. 2 18 U.S.C. (Supp. V) § 3287, 18 U.S.C.A. § 3287. 3 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282. 4 § 35(A) of the Criminal Code, 52 Stat. 197, 18 U.S.C. § 80, now 18 U.S.C. (Supp. V) § 287, 18 U.S.C.A. § 287. 5 Commodity Credit Corporation was a Delaware corporation in which the United States was a stockholder. In 1945 and 1946 it served as an agency of the United States in making loans or purchases in connection with the expansion of the production of many commodities. 15 U.S.C. §§ 713—713a—9, 15 U.S.C.A. §§ 713—713a 9; 1 CFR, 1938, 659—678. See also, Commodity Credit Corporation Charter Act of June 29, 1948, 62 Stat. 1070, as amended, 15 U.S.C. (Supp. V) §§ 714—714o, 15 U.S.C.A. §§ 714—714o. 6 § 37 of the Criminal Code, 35 Stat. 1096, 18 U.S.C. § 88, now 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371. See also, 51 Stat. 197, 18 U.S.C. § 83, now 18 U.S.C. (Supp. V) § 286, 18 U.S.C.A. § 286. 7 See note 1, supra. 8 'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: 'From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded. 'From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy. * * *' 18 U.S.C. (Supp. V) § 3731, 18 U.S.C.A. § 3731. In its notices of appeal, the United States said merely that it appealed from the several orders dismissing the respective indictments. In its combined statement of jurisdiction it relied upon its right to appeal from a judgment sustaining a motion in bar where the defendant has not been put in jeopardy. The Government, however, now suggests that its appeals are based upon the District Court's construction of the statutes upon which the indictments are founded and it seeks to restrict us to the consideration of the District Court's view of the relation between those statutes and the Suspension Act, without reference to the claim of appellees that the extension of time provided by the Suspension Act expired before the indictments were found. We treat the appeals as presenting both issues. See United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181; United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255. See also, United States v. Hark, 320 U.S. 531, 536, 64 S.Ct. 359, 361, 88 L.Ed. 290; United States v. Goldman, 277 U.S. 229, 236—237, 48 S.Ct. 486, 488, 72 L.Ed. 862; United States v. Barber, 219 U.S. 72, 78, 31 S.Ct. 209, 211, 55 L.Ed. 99; and United States v. Kissel, 218 U.S. 601, 606, 31 S.Ct. 124, 125, 54 L.Ed. 1168. 9 'Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within three years next after such offense shall have been committed.' 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282. 10 'When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, or (2) committed in connection with the acquisition, care, handling, custody, control or disposition of any real or personal property of the United States, or (3) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancelation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency, shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.' 18 U.S.C. (Supp. V) § 3287, 18 U.S.C.A. § 3287. The above Act originated in 1942 and was amplified in 1944. In 1945 and 1946, it contained substantially the terms shown above which went into effect September 1, 1948. 56 Stat. 747—748, 58 Stat. 667, 781, 18 U.S.C. § 590a. 11 52 Stat. 197, 18 U.S.C. §§ 80, 83, 84, 85. In the codification of 1948, § 80 was subdivided by placing its false claims clause in § 287, and its false statement clause in § 1001 of 18 U.S.C (Supp. V), 18 U.S.C.A. § 1001. The special conspiracy clause, found in § 83, became § 286 in Supp. V, 18 U.S.C.A. § 286. 12 3 CFR, 1946 Supp., 77—78. 13 United States v. Scharton, 285 U.S. 518, 52 S.Ct. 416, 76 L.Ed. 917; United States v. McElvain, 272 U.S. 633, 47 S.Ct. 219, 71 L.Ed. 451; United States v. Noveck, 271 U.S. 201, 46 S.Ct. 476, 70 L.Ed. 904. 14 The false statement clause of the False Claims Act, which was involved in Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, affirmed by an equally divided Court, 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431, 336 U.S. 922, 69 S.Ct. 513, 93 L.Ed. 1075, provides merely that 'whoever shall * * * make * * * any false or fraudulent statements or representations * * * in any matter within the jurisdiction of any department or agency of the United States or of any corporation in which the United States of America is a stockholder * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both.' 52 Stat. 197, 18 U.S.C. § 80, now 18 U.S.C. (Supp. V) § 1001, 18 U.S.C.A. § 1001. Cases arising under that clause need not be discussed here and the references made in them to offenses arising generally under the False Claims Act should be read as referring to its false statement clause rather than to its false claims clause or to the Act as a whole. 15 18 U.S.C. (Supp. V) § 3287, 18 U.S.C.A. § 3287. 16 52 Stat. 197.
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346 U.S. 271 73 S.Ct. 1152 97 L.Ed. 1607 Julius ROSENBERG and Ethel Rosenberg, petitioners,v.Wilford L. DENNO, Warden of Sing Sing Prison. No. ____. Special Term 1953 Supreme Court of the United States June 15, 1953 The motion for leave to file petition for an original writ of habeas corpus is denied. Mr. Justice FRANKFURTER: The disposition of an application to this Court for habeas corpus is so rarely to be made by this Court directly that Congress has given the Court authority to transfer such an application to an appropriate district court. 28 U.S.C., § 2241, 28 U.S.C.A. § 2241. I do not favor such a disposition of this application because the substance of the allegations now made has already been considered by the District Court for the Southern District of New York and on review by the Court of Appeals for the Second Circuit. Neither can I join the Court in denying the application without more. I would set the application down for hearing before the full Court tomorrow forenoon. Oral argument frequently has a force beyond what the written word conveys. Mr. Justice BLACK, dissents. June 18, 1953 The Court met in Special Term pursuant to a call by the Chief Justice. The Chief Justice said: 1 'The Court is now convened in Special Term to consider an application by the Attorney General (1) to review the stay of execution of Julius Rosenberg and Ethel Rosenberg, granted by Mr. Justice Douglas on June 17, 1953, or (2) for reconsideration and reaffirmance of this Court's order of June 15, 1953, in No. 1, Misc., Julius Rosenberg and Ethel Rosenberg, petitioners, v. Wilford L. Denno, Warden of Sing Sing Prison, June 1953 Special Term, denying a stay. 2 'The Special Term convenes with the approval of all the Associate Justices except Mr. Justice Black, who objects.'
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346 U.S. 324 73 S.Ct. 1178 97 L.Ed. 1634 Julius ROSENBERG and Ethel Rosenbergv.UNITED STATES of America. No, ____. Special Term 1953. Supreme Court of the United States June 19, 1953 djQ PER CURIAM. The motion for reconsideration of the question of the Court's power to vacate Mr. Justice DOUGLAS' stay order and hear oral argument is denied. djQ Mr. Justice BLACK, dissenting. Mr. Justice FRANKFURTER desires that it be noted that he too would deny the motion to reconsider the power of this Court to review Mr. Justice DOUGLAS' order to stay the execution, but not because he thinks the matter is free from doubt. See his dissenting opinion in Ex parte Republic of Peru, 318 U.S. 578, 590, 63 S.Ct. 793, 800, 87 L.Ed. 1014, in connection with Lambert v. Barrett, 157 U.S. 697, 15 S.Ct. 722, 39 L.Ed. 865, and Carper v. Fitzgerald, 121 U.S. 87, 7 S.Ct. 825, 30 L.Ed. 882. Lemke v. United States [74SCt1,346US325,98LEd3] 74 S.Ct. 1 346 U.S. 325 98 L.Ed. 3 LEMKE v. UNITED STATES. No. 109. Oct. 12, 1953. PER CURIAM. 1 This case is here on a petition for certiorari to the Court of Appeals for the Ninth Circuit, which dismissed an appeal as premature. Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides that 'An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from * * *.' On March 10, 1952, petitioner was sentenced to six months in jail after a jury verdict finding him guilty of violating § 65—5 81 of the Alaska Compiled Laws Ann. 1949. On March 11, 1952, petitioner filed his notice of appeal. The judgment, however, was not entered until March 14, 1952. Since no notice of appeal was filed after that time, the appeal was dismissed as premature, Judge Pope dissenting. 2 The notice of appeal filed on March 11 was, however, still on file on March 14 and gave full notice after that date, as well as before, of the sentence and judgment which petitioner challenged. We think the irregularity is governed by Rule 52(a) which reads 'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.' 3 Accordingly we grant the petition for certiorari, reverse the judgment below, and remand the case for further proceedings consistent with this opinion. 4 The CHIEF JUSTICE took no part in the consideration or decision of this case.
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346 U.S. 273 73 S.Ct. 1173 97 L.Ed. 1607 ROSENBERG et. ux.v.UNITED STATES No. ____. APPENDIX Decided June 17, 1953. [Syllabus from pages 273-276 intentionally omitted] Acting Solicitor General Robert L. Stern, Washington, D.C., for the United States. Messrs. Emanuel H. Bloch, John F. Finerty, New York City, and Fyke Farmer, Nashville, Tenn., Daniel D. Marshall, Los Angeles, Cal., for the Rosenbergs. July 16, 1953. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 A Special Term of the Court was convened upon the Attorney General's application to review a stay of execution in this case, issued by Mr. Justice DOUGLAS. 2 Our action was unusual. So were the circumstances which led to it. The Court's action should be considered in the context of the full history of the proceedings which have marked this case. 3 On August 17, 1950, the defendants were indicted for conspiring to commit espionage in wartime, in violation of the Espionage Act of 1917, 50 U.S.C. §§ 32(a), 34.* After a lengthy jury trial they were found guilty, and on April 5, 1951, they were sentenced to death. Upon appeal the Court of Appeals affirmed.1 A petition for rehearing was denied. 4 A petition for certiorari was filed here. It was denied on October 13, 1952.2 A petition for rehearing was filed October 28, 1952. It was denied on November 17, 1952.3 5 One week thereafter, a motion was filed in the District Court under § 2255 of the Judicial Code, 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, to vacate the judgment and sentence. That motion (hereafter called the first § 2255 motion) did not challenge the power of the District Court to impose the death sentence. It was denied.4 The Court of Appeals affirmed. A petition for rehearing was denied.5 Certiorari was again sought here, and denied on May 25, 1953. The stay entered by the Court of Appeals was vacated by this Court on the same date.6 On the same day, a petition for a stay, pending the consideation of a petition for rehearing, to be filed by June 9, 1953, was denied by The Chief Justice. A petition for rehearing was filed and was pending during the last week of the 1952 Term of the Court, the adjournment of the Term having been announced for June 15, 1953. 6 In the meantime execution of the sentence was set for the week of June 15th by the District Judge, and two further motions under § 2255 to vacate judgment and sentence were denied in District Court, one on June 1, 1953 and another on June 8, 1953. Those denials were affirmed by the Court of Appeals on June 5 and June 11, 1953, respectively. 7 In addition to those two motions under § 2255, a petition was also presented to the Court of Appeals asking that a writ of mandamus be issued, directing the sentencing judge to resentence the defendants. On June 2, 1953, the Court of Appeals denied relief by way of mandamus. Thus, as of June 12, 1953, three decisions had been entered by the Court of Appeals is collateral attacks upon the sentence, all three attacks having been instituted by the defendants after our denial of certiorari on May 25, 1953, as to the first motion under § 2255. 8 On June 12, 1953, an application for a stay or execution was filed with the Clerk of this Court and presented to Mr. Justice Jackson, the appropriate Circuit Justice. This stay was requested to enable the Rosenbergs to seek review of the three most recent decisions of the Court of Appeals 'within the time ordered by the applicable statute.' Mr. Justice Jackson referred this application to the full Court, with a recommendation that oral argument be heard on it. On June 15, 1953, the last session of the 1952 Term, the Court declined to hear oral argument on this application and denied the stay.7 The pending petition for rehearing as to the May 25, 1953, denial of certiorari, was also denied.8 Thus the Court had in effect, disposed of all collateral attacks upon the sentence then pending in the courts—as to the first § 2255 motion by adhering to its original denial of certiorari and as to the three subsequent decisions of the Court of Appeals in the further collateral proceedings by denying a stay, a decision which showed that the Court saw no substantial question in those proceedings to be preserved for its further consideration. 9 Just a moment before adjournment of the 1952 Term, a petition for an original writ of habeas corpus, including a request for a stay, was presented to the Court. On account of the imminence of the execution, counsel urged immediate action. They were advised that prompt consideration would be given to the application. The Court met in Special Term on the afternoon of that day and denied the application.9 The Special Term was then adjourned. 10 Late on June 15, 1953, counsel for the defendants applied to Mr. Justice DOUGLAS for a stay. On June 16, 1953, counsel representing one Edelman, who described himself as 'next friend' to the Rosenbergs, presented to Mr. Justice DOUGLAS a petition for habeas corpus. That petition included a prayer for a stay. More than two months before their appearance before Mr. Justice DOUGLAS, Edelman's attorneys had asked counsel for the Rosenbergs to raise the very question which they urged upon Mr. Justice DOUGLAS. The argument was not adopted at that time by counsel for the defendants.10 In this recitation of facts, we do not hold in this case that a waiver of this claim precluded its consideration. 11 On the morning of June 17, 1953, Mr. Justice DOUGLAS denied the stay requested by counsel for the defendants, since it raised questions already passed upon by the Court. 12 Edelman's counsel raised the claim that the Atomic Energy Act of 1946, 42 U.S.C. § 1810(b)(2) and (3), 42 U.S.C.A. § 1810(b)(2, 3), superseded the Espionage Act and rendered the District Court without power to impose the death sentence. Mr. Justice DOUGLAS was of the opinion that this contention posed a substantial question; he denied the application for habeas corpus, but granted a stay, effective until the applicability of the Atomic Energy Act could be determined in the District Court and the Court of Appeals. 13 The Attorney General then applied to the Court, asking that we convene a Special Term of Court and vacate the stay. The Court was convened in Special Term on June 18 1953, Mr. Justice Black objecting. 14 Thus we were brought to this particular proceeding. The case was argued for several hours on June 18. The Court then recessed and deliberated in conference for several hours. During the next morning the Court held another conference, and then met at noon and announced its decision in a per curiam opinion. We vacated the stay. 15 Immediately following the announcement of this decision, counsel for the Rosenbergs moved for a further stay asking that the Court grant them an additional period in which they might seek executive clemency. Counsel for Edelman moved that the Court reconsider the question of its power to vacate the stay. After a recess and deliberation, the Court denied both motions, with Mr. Justice Black noting dissents, and Mr. Justice Frankfurter appending a separate memorandum to each order.11 16 The Special Term was adjourned. Thereafter executive clemency was denied. The sentence of death was carried out. 17 We have recited the history of this unusual case at length because we think a full recitation is necessary to a proper understanding of the decision rendered. We proceed to discuss two questions of power: the power of Mr. Justice DOUGLAS to issue the stay; and the power of this Court to decide, in this proceeding, the question preserved by the stay and the vacation of the stay. 18 Mr. Justice DOUGLAS had power to issue the stay. No one has disputed this, and we think the proposition is indisputable. 19 Stays are part of the 'traditional equipment for the administration of justice'. Scripps-Howard Radio, Inc., v. Federal Communications Commission, 1942, 316 U.S. 4, 9—10, 62 S.Ct. 875, 880, 86 L.Ed. 1229. The individual Justices of this Court have regularly issued them, and the exercise of that power is vital to the proper functioning of our jurisdiction. 20 Confronted with the question of the applicability of the Atomic Energy Act, Mr. Justice DOUGLAS wrote: 21 'I have serious doubts whether this death sentence may be imposed for this offense except and unless a jury recommends it. The Rosenbergs should have an opportunity to litigate that issue. 22 'I will not issue the writ of habeas corpus. But I will grant a stay effective until the queston of the applicability of the penal provisions of § 10 of the Atomic Energy Act to this case can be determined by the District Court and the Court of Appeals, after which the question of a further stay will be open to the Court of Appeals or to a member of this Court in the usual order.' After hearing argument on this question we did not entertain the serious doubts which Mr. Justice DOUGLAS had. 23 We turn next to a consideration of our power to decide, in this proceeding, the question preserved by the stay. It is true that the full Court has made no practice of vacating stays issued by single Justices, although it has entertained motions for such relief.12 But reference to this practice does not prove the nonexistence of the power; it only demonstrates that the circumstances must be unusual before the Court, in its discretion, will exercise its power. 24 The power which we exercised in this case derives from this Court's role as the final forum to render the ultimate answer to the question which was preserved by the stay. 25 Thus Mr. Justice DOUGLAS, in issuing the stay, did not act to grant some form of amnesty or last-minute reprieve to the defendants; he simply acted to protect jurisdiction over the case, to maintain the status quo until a conclusive answer could be given to the question which had been urged in the defendants' behalf. In the exercise of our jurisdiction to decide the question which was preserved for decision, it lay within our power to bring the new claim before us and examine its merits without further delay. In considering this question the Court carried out the limited purpose for which Mr. Justice DOUGLAS issued the stay. 26 The existence of our power was clear, and so also, we think, was the necessity for its exercise. Yet it was urged at argument that the Court, as a matter of discretion if not of power, should refrain from immediately deciding the merits of the issue which had been preserved by the stay. Indeed, the reasons for refusing, as a matter of practice, to vacate stays issued by single Justices are obvious enough. Ordinarily the stays of individual Justices should stand until the grounds upon which they have issued can be reviewed through regular appellate processes. 27 In this case, however, we deemed it proper and necessary to convene the Court to consider the Attorney General's urgent application. Mr. Justice DOUGLAS denied the petition for habeas corpus. His grant of a stay called for initiation of a new proceeding in the District Court. It followed hard on the heels of our orders denying a rehearing, denying a further stay and denying a motion for leave to file a petition for habeas corpus in which a stay was requested. The stay issued by Mr. Justice DOUGLAS was based, of course, on a new claim—a question which had not been considered in any prior proceeding. 28 This Court has the responsibility to supervise the administration of criminal justice by the federal judiciary. This includes the duty to see that the laws are not only enforced by fair proceedings, but also that the punishments prescribed by the laws are enforced with a reasonable degree of promptness and certainty. The stay which had been issued promised many more months of litigation in a case which had otherwise run its full course. 29 The question preserved for adjudication by the stay was entirely legal; there was no need to resort to the fact finding processes of the District Court; it was a question of statutory construction which this Court was equipped to answer. We decided that a proper administration of the laws required the Court to consider that question forthwith. 30 This brought us to the merits. Our decision was summarized in our per curiam opinion. We held that the Atomic Energy Act of 1946 did not displace the Espionage Act. We held that this issue raised no doubts of such magnitude to require further proceedings before execution of the District Court's original mandate—a mandate which had been affirmed on appeal and sustained thereafter despite continuous collateral attack. 31 More complete statements of the reasons for our decision are set forth in the opinions of Mr. Justice JACKSON and Mr. Justice CLARK. We need not reiterate here, what has been said in those opinions. It is enough to add, that in our view, the ultimate decision was clear. Accordingly, we vacated the stay. 32 June 19, 1953. 33 PER CURIAM. 34 We convened a Special Term of the Court to consider an application by the Attorney General (1) to review the stay of execution of Julius Rosenberg and Ethel Rosenberg, granted by Mr. Justice DOUGLAS on June 17, 1953, or (2) for reconsideration and reaffirmance of this Court's order in No. 1, Misc., Julius Rosenberg and Ethel Rosenberg, petitioners, v. Wilford L. Denno, Warden of Sing Sing Prison, June 1953 Special Term, 346 U.S. 271, 73 S.Ct. 1152, denying a stay. 35 The Acting Solicitor General agrees and we do not doubt that Mr. Justice DOUGLAS had power to issue the stay in these proceedings. There is no dispute that a stay should issue only if there is a substantial question to be preserved for further proceedings in the courts. 36 The question which has been and now is urged as being substantial is whether the provisions of the Atomic Energy Act of 1946, 42 U.S.C. § 1810(b)(2, 3), 42 U.S.C.A. § 1810(b)(2, 3), rendered the District Court powerless to impose the death sentence under the Espionage Act of 1917, 50 U.S.C. §§ 32(a), 34,* under which statute the indictment was laid. 37 Although this question was raised and presented for the first time to Mr. Justice DOUGLAS by counsel who have never been employed by the Rosenbergs, and who heretofore have not participated in this case, the full Court has considered it on its merits. 38 We think the question is not substantial. We think further proceedings to litigate it are unwarranted. A conspiracy was charged and proved to violate the Espionage Act in wartime. The Atomic Energy Act did not repeal or limit the provisions of the Espionage Act. Accordingly, we vacate the stay entered by Mr. Justice DOUGLAS on June 17, 1953. 39 We are entering this order in advance of the preparation of full opinions which will be filed with the Clerk. 40 Stay vacated. 41 Mr. Justice FRANKFURTER is of opinion that the questions raised for the first time yesterday before the full Court by the application of the Attorney General are complicated and novel. I believe that, in order to enable the Court to adjudicate these issues upon adequate deliberation, this application should be disposed of only after opporutnity has been afforded to counsel for both sides to make an adequate study and presentation. In due course, I will set forth more specifically the grounds for this position. 42 By Mr. Justice JACKSON, whom Mr. Chief Justice VINSON, Mr. Justice REED, Mr. Justice BURTON, Mr. Justice CLARK and Mr. Justice MINTON join. 43 This stay was granted upon such legal grounds that this Court cannot allow it to stand as the basis upon which lower courts must conduct further long-drawn proceedings. 44 The sole ground stated was that the sentence may be governed by the Atomic Energy Act of August 1, 1946, instead of by the earlier Espionage Act. The crime here involved was commenced June 6, 1944. This was more than two years before the Atomic Energy Act was passed. All overt acts relating to atomic energy on which the Government relies took place as early as January 1945. 45 The Constitution, art. I, § 9, prohibits passage of any ex post facto Act. If Congress had tried in 1946 to make transactions of 1944 and 1945 offenses, we would have been obliged to set such an Act aside. To open the door to retroactive criminal statutes would rightly be regarded as a most serious blow to one of the civil liberties protected by our Constitution. Yet the sole ground of this stay is that the Atomic Energy Act may have retrospective application to conspiracies in which the only overt acts were committed before that statute was enacted. 46 We join in the opinion by Mr. Justice CLARK and agree that the Atomic Energy Act does not, by text or intention, supersede the earlier Espionage Act. It does not purport to repeal the earlier Act, nor afford any grounds for spelling out a repeal by implication. Each Act is complete in itself and each has its own reason for existence and field of operation. Certainly prosecution, conviction and sentence under the law in existence at the time of the overt acts are not improper. It is obvious that an attempt to prosecute under the later Act would in all probability fail. 47 This stay is not and could not be based upon any doubt that a legal conviction was had under the Espionage Act. Application here for review of the Court of Appeals decision affirming the conviction was refused, 344 U.S. 838, 73 S.Ct. 20, and rehearing later denied, 344 U.S. 889, 73 S.Ct. 134. 48 Later, responsible and authorized counsel raised, among other issues, questions as to the sentence, and an application was made for stay until they could be heard. The application was referred to the full Court, with the recommendation that the full Court hold immediate hearing and as an institution make a prompt and final disposition of all questions. This was supported by four Justices and failed for want of one more, Mr. Justice DOUGLAS recording his view that 'there would be no end served by hearing oral argument on the motion for a stay.' 345 U.S. 989, 73 S.Ct. 1151. 49 Thus, after being in some form before this Court over nine months, the merits of all questions raised by the Rosenbergs' counsel had been passed upon, or foreclosed by denials. However, on this application we have heard and decided (since it had been the ground for granting the stay) a new contention, despite the irregular manner in which it was originally presented. 50 This is an important procedural matter of which we disapprove. The stay was granted solely on the petition of one Edelman, who sought to appear as 'next friend' of the Rosenbergs. Of course, there is power to allow an appearance in that capacity, under circumstances such as incapacity or isolation from counsel, which make it appropriate to enable the Court to hear a prisoner's case. But in these circumstances the order which grants Edelman's standing further to litigate this case in the lower courts cannot be justified. 51 Edelman is a stranger to the Rosenbergs and to their case. His intervention was unauthorized by them and originally opposed by their counsel. What may be Edelman's purpose in getting himself into this litigation is not explained, although inquiry was made at the bar. It does not appear that his own record is entirely clear or that he would be a helpful or chosen champion. See Edelman v. People of the State of California, 344 U.S. 357, 73 S.Ct. 293. 52 The attorneys who appear for Edelman tell us that for two months they tried to get the authorized counsel for the Rosenbergs to raise this issue but were refused. They also inform us that they have eleven more points to present hereafter, although the authorized counsel do not appear to have approved such issues. 53 The Rosenbergs throughout have had able and zealous counsel of their own choice. These attorneys originally thought this point had no merit and perhaps also that it would obscure the better points on which they were endeavoring to procure a hearing here. Of course, after a Justice of this Court had granted Edelman standing to raise the question and indicated that he is impressed by its substantiality, counsel adopted the argument and it became necessary for us to review it. They also shared their time and the counsel table with the Edelman lawyers thus admitted as attorneys-at-large to their case. The lawyers who have ably and courageously fought the Rosenbergs' battle throughout then listened at this bar to the newly imported counsel make an argument which plainly implied lack of understanding or zeal on the part of the retained counsel. They simply had been elbowed out of the control of their case. 54 Every lawyer familiar with the workings of our criminal courts and the habits of our bar will agree that this precedent presents a threat to orderly and responsible representation of accused persons and the right of themselves and their counsel to control their own cases. The lower court refused to accept Edelman's intrusion but by the order in question must accept him as having standing to take part in, or to take over, the Rosenbergs' case. That such disorderly intervention is more likely to prejudice than to help the representation of accused persons in highly publicized cases is self-evident. We discountenance this practice. 55 Vacating this stay is not to be construed as indorsing the wisdom or appropriateness to this case of a death sentence. That sentence, however, is permitted by law and, as was previously pointed out, is therefore not within this Court's power of revision. 344 U.S. 889, 889, 73 S.Ct. 134. 56 Mr. Justice CLARK, with whom THE CHIEF JUSTICE, Mr. Justice REED, Mr. Justice JACKSON, Mr. Justice BURTON, and Mr. Justice MINTON join. 57 Seven times now have the defendants been before this Court. In addition, THE CHIEF JUSTICE, as well as individual Justices, have considered applications by the defendants. The Court of Appeals and the District Court have likewise given careful consideration to even more numerous applications than has this Court. 58 The defendants were sentenced to death on April 5, 1951. Beginning with our refusal to review the conviction and sentence in October 1952, each of the Justices have given the most painstaking consideration to the case. In fact, all during the past Term of this Court one or another facet of this litigation occupied the attention of the Court. At a Special Term on June 15, 1953, we denied for the sixth time the defendants' plea. The next day an application was presented to Mr. Justice DOUGLAS contending that the penalty provisions of the Atomic Energy Act governed this prosecution; and that since the jury did not find that the defendants committed the charged acts with intent to injure the United States nor recommend the imposition of the death penalty the court had no power to impose the sentence of death. After a hearing Mr. Justice DOUGLAS, finding that the contention had merit, granted a stay of execution. The Court convened in Special Term to review that determination. Cf. Ex parte Quirin, 1942, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3. 59 Human lives are at stake; we need not turn this decision on fine points of procedure or a party's technical standing to claim relief. Nor did Mr. Justice DOUGLAS lack the power and, in view of his firm belief that the legal issues tendered him were substantial, he even had the duty to grant a temporary stay. But for me the short answer to the contention that the Atomic Energy Act of 1946 may invalidate defendants' death sentence is that the Atomic Energy Act cannot here apply. It is true that § 10(b)(2) and (3) of that Act authorizes capital punishment only upon recommendation of a jury and a finding that the offense was committed with intent to injure the United States. (Notably, by that statute the death penalty may be imposed for peacetime offenses as well, thus exceeding in harshness the penalties provided by the Espionage Act.) This prosecution, however, charged a wartime violation of the Espionage Act of 1917 under which these elements are not prerequisite to a sentence of death. Where Congress by more than one statute proscribes a private course of conduct, the Government may choose to invoke either applicable law: 'At least where different proof is required for each offense, a single act or transaction may violate more than one criminal statute.' United States v. Beacon Brass Co., 1952, 344 U.S. 43, 45, 73 S.Ct. 77, 79; see also United States v. Noveck, 1927, 273 U.S. 202, 206, 47 S.Ct. 341, 71 L.Ed. 610; Gavieres v. United States, 1911, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489. Nor does the partial overlap of two statutes necessarily work a pro tanto repealer of the earlier Act. Id. 'It is a cardinal principle of construction that repeals by implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both if possible. * * * The intention of the legislature to repeal 'must be clear and manifest'. * * * It is not sufficient * * * 'to establish that subsequent laws cover some or even all of the cases provided for by (the prior act); for they may be merely affirmative, or cumulative, or auxiliary'. There must be 'a positive repugnancy between the provisions of the new law and those of the old". United States v. Borden Co., 1939, 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181. Otherwise the Government when charging a conspiracy to transmit both atomic and non-atomic secrets would have to split its prosecution into two alleged crimes. Section 10(b)(6) of the Atomic Energy Act itself, moreover, expressly provides that § 10 'shall not exclude the applicable provisions of any other laws * * *,' an unmistakable reference to the 1917 Espionage Act.* Therefore this section of the Atomic Energy Act, instead of repealing the penalty provisions of the Espionage Act, in fact preserves them in undiminished force. Thus there is no warrant for superimposing the penalty provisions of the later Act upon the earlier law. 60 In any event, the Government could not have invoked the Atomic Energy Act against these defendants. The crux of the charge alleged overt acts committed in 1944 and 1945, years before that Act went into effect. While some overt acts did in fact take place as late as 1950, they related principally to defendants' efforts to avoid detection and prosecution of earlier deeds. Grave doubts of unconstitutional ex post facto criminality would have attended any prosecution under that statute for transmitting atomic secrets before 1946. Since the Atomic Energy Act thus cannot cover the offenses charged, the alleged inconsistency of its penalty provisions with those of the Espionage Act cannot be sustained. 61 Our liberty is maintained only so long as justice is secure. To permit our judicial processes to be used to obstruct the course of justice destroys our freedom. Over two years ago the Rosenbergs were found guilty by a jury a of a grave offense in time of war. Unlike other litigants they have had the attention of this Court seven times; each time their pleas have been denied. Though the penalty is great and our responsibility heavy, our duty is clear. 62 Mr. Justice BLACK, dissenting. 63 It is argued that the Court is not asked to 'act with unseemly haste to avoid postponement of a scheduled execution.' I do not agree. I do not believe that Government counsel or this Court has had time or an adequate opportunity to investigate and decide the very serious question raised in asking this Court to vacate the stay granted by Mr. Justice DOUGLAS. The oral arguments have been wholly unsatisfactory due entirely to the lack of time for preparation by counsel for the Government and counsel for the defendants. Certainly the time has been too short for me to give this question the study it deserves. The following are some of the reasons why I think the Court should not at this time upset the considered rulings of Mr. Justice DOUGLAS. I add my regret that the rush of this case has deprived me of any opportunity to do more at this time than hastily sketch my view on the important questions raised. 64 First. The Government argues that this Court has power to set aside the stay granted by Mr. Justice DOUGLAS. I think this is doubtful. I have found no statute or rule of court which permits the full Court to set aside a mere temporary stay entered by a Justice in obedience to his statutory obligations.* Moreover, it is a commonplace for judges to grant stays in vacation. This is a healthy and necessary Court custom. There may have been prior instances where vacation stays of individual Justices have been set aside by the full Court before the next regular term, but no such cases have been pointed out in the Solicitor General's argument and I have found none. So far as I can tell, the Court's action here is unprecedented. 65 But if the Court could find statutory or constitutional power to vacate this stay, there are many reasons why I believe that power should not be exercised. Concededly, an individual Justice has power to grant stays where substantial questions are raised. He not merely has power to do so; there is a serious obligation upon him to grant a stay where new substantial questions are presented. Where the life or death of citizens is involved, that obligation is all the heavier. Surely the Court is not here establishing a precedent which will require it to call extra sessions during vacation every time a federal or state official asks it to hasten the electrocution of defendants without affording this Court adequate time or opportunity for exploration and study of serious legal questions. It is not inappropriate to point out that in Lambert v. Barrett, 157 U.S. 697, 15 S.Ct. 722, 39 L.Ed. 865, decided in 1895 and never overruled, this Court held that it had no jurisdiction over an appeal from a habeas corpus order of a circuit judge entered in chambers. The stay order in this case derives from petitions for habeas corpus and was entered by Mr. Justice DOUGLAS in chambers. 66 Second. The stay of Mr. Justice DOUGLAS in this case was based on his studied conclusion that there were substantial grounds to believe the death sentences of these two people were imposed by the District Judge in violation of law. I agree with Mr. Justice DOUGLAS. The Government contends, however, that the death sentences were properly imposed under the Espionage Act of 1917, 50 U.S.C. § 32, which gives a district judge unconditional power to impose the death penalty for violation of that Act. But the Atomic Energy Act, 42 U.S.C. § 1810, 42 U.S.C.A. § 1810, passed in 1946, appears to have taken the death sentencing power from district judges, in cases of atomic energy espionage, except where juries recommend a death sentence and where there are allegations and proof that atomic energy information has been unlawfully transmitted with intent to injure the United States. The indictment here charged a conspiracy alleged to have continued from June 6, 1944, to June 16, 1950. Thus the alleged conspiracy covered one period of conduct where the 1917 Act plainly governed and another period of conduct after the Atomic Energy Act went into effect. The Rosenbergs were charged with conspiracy to disclose atomic secrets as well as other kinds of secrets. Under these circumstances it would more nearly fit into the general canons of construction to hold that a District Court could impose sentence only under the less harsh statute. 67 I am not unaware of the Government's argument that this Court can and should give full effect to both these statutes, one which deprives the District Court of unconditional power to impose the death sentence and one which grants such unconditional power. This would be a strange argument in any case but it seems still stranger to me in a case which involves matters of life and death. The stay of Mr. Justice DOUGLAS is based entirely on his desire to have this matter passed upon in due course and after proper deliberation in a habeas corpus proceeding brought in district court and followed through to this Court. That is as it should be. Judicial haste is peculiarly out of place where the death penalty has been imposed for conduct part of which took place at a time when the Congress appears to have barred the imposition of the death penalty by district judges acting without a jury's recommendation. And it seems to me that this Court has not had time or opportunity for sufficient study to give the kind of informed decision on this important question it would if the case should take its regular course. 68 Thira. I am aware also of the argument that Mr. Justice DOUGLAS should not have considered and that we should not now consider the point here involved because the Rosenbergs' lawyers had not originally raised it on appeal. I cannot believe, however, that if the sentence of a citizen to death is plainly illegal, this Court would allow that citizen to be executed on the grounds that his lawyers had 'waived' plain error. An illegal execution is no less illegal because a technical ground of 'waiver' is assigned to justify it. Compare Bowen v. Johnston, 306 U.S. 19, 26, 59 S.Ct. 442, 445, 83 L.Ed. 455. After having seen the Court's order I find that it appears to agree with this view. 69 Fourth. The inadequate oral arguments before this Court have left me with the firm conviction that the applicability of the penal provisions of the Atomic Energy Act of 1946 to this case presents a substantial and serious question. This I think is fully demonstrated by the opinion written by Mr. Justice DOUGLAS when he granted the stay order, a copy of which is attached by him as an appendix to his opinion with which opinion I agree. It is my view based on the limited arguments we have heard that after passage of the Atomic Energy Act of 1946 it was unlawful for a judge to impose the death penalty for unlawful transmittal of atomic secrets unless such a penalty was recommended by the jury trying the case. I think this question should be decided only after time has been afforded counsel for the Government and for the defendants to make more informed arguments than we have yet heard and after this Court has had an opportunity to give more deliberation than it has given up to this date. This I think would be more nearly in harmony with the best judicial traditions. 70 I may add that I voted to grant certiorari originally in this case. That petition for certiorari challenged the fairness of the trial. It also challenged the right of the Government to try these defendants except under the limited rules prescribed by the Constitution defining the offense of treason. These I then believed to be important questions. In motions for rehearing the arguments as to the unfairness of the trial were expanded and I again voted for review. I have long thought that the practice of some of the states to require an automatic review by the highest court of the state in cases which involve the death penalty was a good practice. 71 It is not amiss to point out that this Court has never reviewed this record and has never affirmed the fairness of the trial below. Without an affirmance of the fairness of the trial by the highest court of the land there may always be questions as to whether these executions were legally and rightfully carried out. I would still grant certiorari and let this Court approve or disapprove the fairness of the trials. 72 June 22, 1953. 73 Mr. Justice FRANKFURTER, dissenting. 74 On an application made after adjournment of the Court, Mr. Justice DOUGLAS granted a stay of execution of the death sentences of Julius and Ethel Rosenberg. On the afternoon of the same day, the Attorney General of the United States filed an application to convene the Court in Special Term with a view to vacating the stay. It was not until late that afternoon that arrangements for convening the Court the following day could be completed. Less than three hours before the Court convened at about noon on Thursday, June 18, and in the case of some members of the Court only a few minutes before noon, did the individual members of the Court receive the Government's application and brief bearing on the propriety and reviewability of Mr. Justice DOUGLAS' order. 75 There followed three hours of argument on jurisdictional and procedural issues as well as on the issue of the substantiality of the question of law raised by the application for a stay which led to Mr. Justice DOUGLAS' order. In vacating that order the Court found no infirmity in it on any jurisdictional or procedural ground. The Court recognized Mr. Justice DOUGLAS' power to entertain the application for a stay;1 his power to consider a question though raised by counsel not of record; his power to consider a question not heretofore urged, when it concerned the legality of a sentence. See Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872. 76 Thus the only issue in the case was whether the question on the basis of which Mr. Justice DOUGLAS acted was patently frivolous or was sufficiently serious to require the judicial process to run its course with the deliberation necessary for confident judgment. That is the sole issue to which this opinion is addressed. All else is irrelevant. Once the Court conceded, as it did, that the substantiality of the question raised before Mr. Justice DOUGLAS was the sole issue, it became wholly immaterial how many other questions had previously been raised and considered on their merits in the District Court and in the Court of Appeals, or how many times review was sought on these questions and refused by this Court. It was equally immaterial how long a time intervened between the original trial of this case and the present proceeding, and immaterial that this was a last-minute effort almost on the eve of the executions. To allow such irrelevancies to enter the mind not unnaturally tends to bend the judicial judgment in a false direction. 77 And so I turn to what is for me controlling in this case. I summarized my position in the following notation on the Court's order: 78 'Mr. Justice FRANKFURTER is of opinion that the questions raised for the first time yesterday before the full Court by the application of the Attorney General are complicated and novel. He believes that, in order to enable the Court to adjudicate these issues upon adequate deliberation, this application should be disposed of only after opportunity has been afforded to counsel for both sides to make an adequate study and presentation. In due course, Mr. Justice FRANKFURTER will set forth more specifically the grounds for this position.' 79 Painful as it is, I am bound to say that circumstances precluded what to me are indispensable conditions for solid judicial judgment. They precluded me, and now preclude me, from saying that the legal issue that was raised before Mr. Justice DOUGLAS was without substance. Let me set forth some of the difficulties that immediately arise upon consideration of that issue. 80 The basis on which the jury convicts is authoritatively to be taken from what the judge tells the jury. In this case, the jury's attention was especially directed to the fact that the charge was a conspiracy to obtain and transmit classified materials pertaining in part to the atomic bomb: 81 'Bear in mind—please listen to this, ladies and gentlemen that the Government contends that the conspiracy was one to obtain not only atomic bomb information, but other secret and classified information; that the information including the report regarding fire-control equipment requested of Elitcher by Sobell or Rosenberg was classified; that the atomic bomb information transmitted by the Rosenbergs was classified as top secret; that based on Rosenberg's alleged statements to Greenglass, other secret information such as mathematical data on atomic energy for airplanes, information relating to a 'sky platform' project and other information was obtained by Julius Rosenberg from scientist contacts in the country.' R. 1557. 82 And the indictment charged that the conspiracy continued from 1944 to 1950. Such 'averments of time in the indictment are expected and intended to be proved as laid.' United States v. Kissel, 218 U.S. 601, 609, 31 S.Ct. 124, 126, 54 L.Ed. 1168. Indeed, the judge told the jury: 'You must first determine, from all the evidence in the case, relating to the period of time defined in the indictment, whether or not a conspiracy existed.' R. 1552. Only one conspiracy could have been found by the jury to have existed, and that was the conspiracy averred in the indictment, a conspiracy continuous from a date certain in 1944 to a date certain in 1950. The Government could of course have charged a conspiracy beginning in 1944 and ending on July 31, 1946, the day before the Atomic Energy Act, 42 U.S.C.A. § 1801 et seq., came into effect. It did not do so. That fact is of decisive importance. The consequences of a conspiracy that was afoot for six years might have been vastly different from those of a conspiracy that terminated within two years, that is, by the time Congress devised legislation to protect atomic energy secrets. 83 It is suggested that the overt acts laid in the indictment all occurred before the effective date of the Atomic Energy Act and that hence the indictment did not charge any offense committed after that effective date. But, again, the offense charged in the indictment was a conspiracy, not one or more over acts.2 As the judge told the jury, they had to find a conspiracy in order to convict, a conspiracy aimed principally at obtaining atomic secrets and characterized as such by the overt acts alleged, but a conspiracy, I cannot too often repeat, alleged to have been continuous to a date certain in 1950. The Government having tried the Rosenbergs for a conspiracy, continuing from 1944 to 1950, to reveal atomic secrets among other things, it flies in the face of the charge made, the evidence adduced and the basis on which the conviction was secured now to contend that the terminal date of the Rosenberg Conspiracy preceded the effective date of the Atomic Energy Act. 84 It thus appears—although, of course, I would feel more secure in my conviction had I had the opportunity to make a thorough study of the lengthy record in this case—that the conspiracy with which the Rosenbergs were charged is one falling in part within the terms of the Atomic Energy Act, passed by Congress in 1946 and specifically dealing with classified information pertaining to the recent developments in atomic energy. There remains the question whether the sentence for such a conspiracy could be imposed under the Espionage Act. 85 Congress was not content with the penal provisions of the Espionage Act of 1917 to prevent disclosure of atomic energy information. The relevant provisions of the Atomic Energy Act of 1946 differ in several respects from those of the Espionage Act. For one thing the 1946 Act makes possible the death penalty for disclosures in time of peace as well as in war. Some disclosures which fell generally within the Espionage Act now specifically fall under § 10 of the Atomic Energy Act. The decisive thing in this case is that under the Espionage Act the power to impose a sentence of death was left exclusively to the discretion of the court, while under the Atomic Energy Act a sentence of death can be imposed only upon recommendation of the jury. 86 Surely it needs only statement that with such a drastic difference in the authority to take life between the Espionage Act and the Atomic Energy Act, it cannot be left within the discretion of a prosecutor whether the judge may impose the death sentence wholly on his own authority or whether he may do so only upon recommendation of the jury. Nothing can rest on the prosecutor's caprice in placing on the indictment the label of the 1917 Act or of the 1946 Act. To seek demonstration of such an absurdity, in defiance of our whole conception of impersonality in the criminal law, would be an exercise in self-stultification. The indorsement of an indictment, the theory under which the prosecutor is operating, his belief or error as to the statute which supports an indictment or under which sentences may be imposed, are all wholly immaterial.3 Williams v. United States, 168 U.S. 382, 389, 18 S.Ct. 92, 94, 42 L.Ed. 509. 87 These considerations—the fact that Congress and not the whim of the prosecutor fixes sentences, that the allegations of an indictment are to be judged by the relevant statute under which punishment may be meted out and not by the design of the prosecutor or the assumption of the trial court—cut across all the talk about repeal by implication and other empty generalities on statutory construction. Congress does not have to say in so many words that hereafter a judge cannot without jury recommendation impose a sentence of death on a charge of conspiracy that falls within the Atomic Energy Act. It is enough if in fact Congress has provided that hereafter such a death sentence is to depend on the will of the jury. 88 This much, at least, lies on the surface of an analysis of the two statutes. The Reports of this Court are replete with instances of marked division of opinion in construing criminal statutes; doubtful and ambiguous statutory language and like ambiguities in the interpretative materials that led to many of those divisions are certainly not more impressive, to say the least, than the ambiguities and difficulties here. See, e.g., United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48; Singer v. United States, 323 U.S. 338, 65 S.Ct. 282, 89 L.Ed. 285; United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; United States v. C.I.O., 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849; United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758; United States v. Hood, 343 U.S. 148, 72 S.Ct. 568, 96 L.Ed. 846. 89 In all matters of statutory construction one goes, especially these days, to the history of the legislation and other illuminating materials. It is almost mathematically demonstrable that there just was not time within twelve waking hours to dig out, to assess, to assemble, and to formulate the meaning of legislative materials. Suffice it to say that such materials bearing on legislative purpose as a necessarily very limited inquiry has revealed do not justify certitude. See S.Rep. No. 1211, 79th Cong., 2d Sess. 23—24; 92 Cong.Rec. 6082, 6096, 9257, 10194; cf. id., at 9481—9482. And an authoritative commentary on the Atomic Energy Act, written by counsel for the Senate Special Committee on Atomic Energy which drafted the statute, not only recognizes a compelling need for judicial decision in order to reconcile the conflicting penalty provisions of that Act and of the Espionage Act but seems, as I read it, to point to the view that on facts like those of this case the Atomic Energy Act may well be found to apply to the exclusion of the Espionage Act.4 Newman, Control of Information Relating to Atomic Energy, 56 Yale L.J. 768. 90 Neither counsel nor the Court, in the time available, were able to go below the surface of the question raised by the application for a stay which Mr. Justice DOUGLAS granted. More time was needed than was had for adequate consideration. Arguments by counsel are an indispensable adjunct of the judicial process, and responsible arguments require adequate opportunity for preparation. They must be pressed with the force of partisanship. And because arguments are partisan, judgment further presupposes ample time and an unhurried mind for independent study and reflection by judges as a basis for discussion in conference. Without adequate study there cannot be adequate reflection; without adequate reflection there cannot be adequate discussion; without adequate discussion there cannot be the searching and fruitful interchange of informed minds which is indispensable to wise decision and which alone can produce compelling opinions. We have not had in this case carefully prepared argument. We have not had what cannot exist without that essential preliminary. We have not had the basis for reaching conclusions and for supporting them in opinions. Can it be said that there was time to go through the process by which cases are customarily decided here? 91 The crux of all I am suggesting is that none of the obvious considerations for bringing the all too leaden-footed proceedings in this case to an end should have barred the full employment of the deliberative process necessary for reaching a firm conclusion on the issue on which the Court has now spoken, however unfortunate it may be that that issue did not emerge earlier than it did. Since I find myself under the disability of having had insufficient time to explore the issue as I believe it should have been explored, nothing I am saying may be taken to intimate that I would now sustain the last claim made in behalf of the Rosenbergs. But I am clear that the claim had substance and that the opportunity for adequate exercise of the judicial judgment was wanting. 92 To be writing an opinion in a case affecting two lives after the curtain has been rung down upon them has the appearance of pathetic futility. But history also has its claims. This case is an incident in the long and unending effort to develop and enforce justice according to law. The progress in that struggle surely depends on searching analysis of the past, though the past cannot be recalled, as illumination for the future. Only by sturdy self-examination and self-criticism can the necessary habits for detached and wise judgment be established and fortified so as to become effective when the judicial process is again subjected to stress and strain. 93 American criminal procedure has its defects, though its essentials have behind them the vindication of long history. But all systems of law, however wise, are administered through men and therefore may occasionally disclose the frailties of men. Perfection may not be demanded of law, but the capacity to counteract inevitable, though rare, frailties is the mark of a civilized legal mechanism. 94 June 19, 1953. 95 Mr. Justice DOUGLAS, dissenting. 96 When the motion for a stay was before me, I was deeply troubled by the legal question tendered. After twelve hours of research and study I concluded, as my opinion* indicated, that the question was a substantial one, never presented to this Court and never decided by any court. So I issued the stay order. 97 Now I have had the benefit of an additional argument and additional study and reflection. Now I know that I am right on the law. 98 The Solicitor General says in oral argument that the Government would have been laughed out of court if the indictment in this case had been laid under the Atomic Energy Act of 1946. I agree. For a part of the crime alleged and proved antedated that Act. And obviously no criminal statute can have retroactive application. But the Solicitor General misses the legal point on which my stay order was based. It is this—whether or not the death penalty can be imposed without the recommendation of the jury for a crime involving the disclosure of atomic secrets where a part of that crime takes place after the effective date of the Atomic Energy Act. 99 The crime of the Rosenbergs was a conspiracy that started prior to the Atomic Energy Act and continued almost 4 years after the effective date of that Act. The overt acts alleged were acts which took place prior to the effective date of the new Act. But that is irrelevant for two reasons. First, acts in pursuance of the conspiracy were proved which took place after the new Act became the law. Second, under Singer v. United States, 323 U.S. 338, 65 S.Ct. 282, 89 L.Ed. 285, no overt acts were necessary; the crime was complete when the conspiracy was proved. And that conspiracy, as defined in the indictment itself, endured almost 4 years after the Atomic Energy Act became effective. 100 The crime therefore took place in substantial part after the new Act became effective, after Congress had written new penalties for conspiracies to disclose atomic secrets. One of the new requirements is that the death penalty for that kind of espionage can be imposed only if the jury recommends it. And here there was no such recommendation. To be sure, this espionage included more than atomic secrets. But there can be no doubt that the death penalty was imposed because of the Rosenbergs' disclosure of atomic secrets. The trial judge, in sentencing the Rosenbergs to death, emphasized that the heinous character of their crime was trafficking in atomic secrets. He said: 101 'I believe your conduct in putting into the hands of the Russians the Abomb years before our best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your treason. Indeed, by your betrayal you undoubtedly have altered the course of history to the disadvantage of our country.' 102 But the Congress in 1946 adopted new criminal sanctions for such crimes. Whether Congress was wise or unwise in doing so is no question for us. The cold truth is that the death sentence may not be imposed for what the Rosenbergs did unless the jury so recommends. 103 Some say, however, that since a part of the Rosenbergs' crime was committed under the old law, the penalties of the old law apply. But it is law too elemental for citation of authority that where two penal statutes may apply—one carrying death, the other imprisonment—the court has no choice but to impose the less harsh sentence. 104 A suggestion is made that the question comes too late, that since the Rosenbergs did not raise this question on appeal, they are barred from raising it now. But the question of an unlawful sentence is never barred. No man or woman should go to death under an unlawful sentence merely because his lawyer failed to raise the point. It is that function among others that the Great Writ serves. I adhere to the views stated by Chief Justice Hughes for a unanimous Court in Bowen v. Johnston, 306 U.S. 19, 26—27, 59 S.Ct. 442, 446, 83 L.Ed. 455: 105 'It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired. Ex parte Lange (18 Wall. 163, 21 L.Ed. 872). The rule requiring resort to appellate procedure when the trial court has determined its own jurisdiction of an offense is not a rule denying the power to issue a writ of habeas corpus when it appears that nevertheless the trial court was without jurisdiction. The rule is not one defining power but one which relates to the appropriate exercise of power.' 106 Here the trial court was without jurisdiction to impose the death penalty, since the jury had not recommended it. 107 Before the present argument I knew only that the question was serious and substantial. Now I am sure of the answer. I know deep in my heart that I am right on the law. Knowing that, my duty is clear. 108 APPENDIX TO THE OPINION OF MR. JUSTICE DOUGLAS 109 Mr. Justice DOUGLAS. 110 These are two applications for a stay of execution made to me after adjournment of the Court on June 15, 1953. The first raises questions concerning the fairness of the trial of the Rosenbergs. I have heard oral argument on that motion and considered the papers that have been filed. This application does not present points substantially different from those which the Court has already considered in its several decisions to deny review of the case, to deny a stay of execution, and to deny a petition for a writ of habeas corpus. While I differed with the Court and thought the case should have been reviewed, the Court has spoken and I bow to its decision. Although I have the power to grant a stay, I could not do so responsibly on grounds the Court has already rejected. 111 Another motion for stay, together with a petition for writ of habeas corpus challenges the power of the District Court to impose the death sentence on the Rosenbergs. The Espionage Act, 50 U.S.C. § 32(a)* provides: 112 "Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to, or aids or induces another to, communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by imprisonment for not more than twenty years: Provided, That whoever shall violate the provisions of subsection (a) of this section in time of war shall be punished by death or by imprisonment for not more than thirty years * * *." (Italics added.) Section 34* provides: 113 "If two or more persons conspire to violate the provisions of sections two or three of this title and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy. Except as above provided conspiracies to commit offenses under this title shall be punished as provided by section thirty-seven of the Act to codify, revise, and amend the penal laws of the United States approved March fourth, nineteen hundred and nine." 114 The indictment, which was returned in 1951, charged a conspiracy to violate § 32(a) with an intent to communicate information that would be used to the advantage of a foreign nature, viz., Soviet Russia. The conspiracy was alleged to have continued from June 6, 1944 to and including June 16, 1950. The overt acts of the Rosenbergs which were alleged took place in 1944 and 1945. 115 On August 1, 1946, the Atomic Energy Act, 42 U.S.C.A. § 1801 et seq., became effective. Section 10(b)(2) and (3) provide: 116 "(2) Whoever, lawfully or unlawfully, having possession of, access to, control over, or being entrusted with, any document, writing, sketch, photograph, plan, model, instrument, appliance, note or information involving or incorporating restricted data—1 117 "(A) communicates, transmits, or discloses the same to any individual or person, or attempts or conspires to do any of the foregoing, with intent to injure the United States or with intent to secure an advantage to any foreign nation, upon conviction thereof, shall be punished by death or imprisonment for life (but the penalty of death or imprisonment for life may be imposed only upon recommendation of the jury and only in cases where the offense was committed with intent to injure the United States); or by a fine of not more than $20,000 or imprisonment for not more than twenty years, or both; " (Italics added.) 118 "(B) communicates, transmits, or discloses the same to any individual or person, or attempts or conspires to do any of the foregoing, with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation, shall, upon conviction, be punished by a fine of not more than $10,000 or imprisonment for not more than ten years, or both. 119 "(3) Whoever, with intent to injure the United States or with intent to secure an advantage to any foreign nation, acquires, or attempts or conspires to acquire any document, writing, sketch, photograph, plan, model, instrument, appliance, note or information involving or incorporating restricted data shall, upon conviction thereof, be punished by death or imprisonment for life (but the penalty of death or imprisonment for life may be imposed only upon recommendation of the jury and only in cases where the offense was committed with intent to injure the United States imprisonment for not more than twenty years, or both." (Italics added.) 120 It is apparent from the face of this new law that the District Court is without power to impose the death penalty except —upon recommendation of the jury 121 and 122 —where the offense was committed with an intent to injure the United States. 123 Neither of those conditions is satisfied in this case as the jury did not recommend the death penalty nor did the indictment charge that the offense was committed with an intent to injure the United States. If the Atomic Energy Act of 1946 is applicable to the prosecution of the Rosenbergs, the District Court unlawfully imposed the death sentence. 124 The Department of Justice maintains that the Espionage Act is applicable to the indictment because all of the over acts alleged took place before the passage of the Atomic Energy Act of 1946. Petitioner maintains that since the indictment was returned subsequent to the Atomic Energy Act and since the conspiracy alleged, though starting prior to that time, continued thereafter, the lighter penalties of the new Act apply. 125 Curiously, this point has never been raised or presented to this Court in any of the earlier petitions or applications. The first reaction is that if it was not raised previously, it must have no substance to it. But on reflection I think it presents a considerable question. One purpose of the Atomic Energy Act was to ameliorate the penalties imposed for disclosing atomic secrets. As S.Rep. No. 1211, 79th Cong., 2d Sess., p. 23, stated, the problem in drafting § 10 was to protect the "common defense and security" and yet assure "sufficient freedom of interchange between scientists to assure the Nation of continued scientific progress." 126 The Rosenbergs obviously were not engaged in an exchange of scientific information in the interests of science. But Congress lowered the level of penalties to protect all those who might be charged with the unlawful disclosure of atomic data. And if the Rosenbergs are the beneficiaries, it is merely the result of the application of the new law with an even hand. In any event, Congress prescribed the precise conditions under which the death penalty could be imposed. And all violators—Communists as well as non-Communists—are entitled to that protection. 127 This question is presented to me for the first time on the eve of the execution of the Rosenbergs without the benefit of briefs or any extended research. I cannot agree that it is a frivolous point or without substance. I may be that not every death penalty imposed for divulging atomic secrets need follow the procedure prescribed in § 10 of the Atomic Energy Act. If the crime was complete prior to the passage of that Act, possibly the old Espionage Act would apply. But this case is different in three respects: First, the offense charged was a conspiracy commencing before but continuing after the date of the new Act. Second, although the overt acts alleged were committed in 1944 and in 1945, the Government's case showed acts of the Rosenbergs in pursuance of the conspiracy long after the new Act became effective.2 Third, the overt acts of the coconspirator, Sobell, were alleged to have taken place between January, 1946, and May, 1948. But the proof against Sobell, as against the Rosenbergs, extended well beyond the effective date of the new Act.3 In short, a substantial portion of the case against the Rosenbergs related to acts in pursuance of the conspiracy which occurred after August 1, 1946. 128 I do not decide that the death penalty could have been imposed on the Rosenbergs only if the provisions of § 10 of the Atomic Energy Act of 1946 were satisfied. I merely decide that the question is a substantial one which should be decided after full argument and deliberation. 129 It is important that the country be protected against the nefarious plans of spies who would destroy us. 130 It is also important that before we allow human lives to be snuffed out we be sure—emphatically sure—that we act within the law. If we are not sure, there will be lingering doubts to plague the conscience after the event. 131 I have serious doubts whether this death sentence may be imposed for this offense except and unless a jury recommends it. The Rosenbergs should have an opportunity to litigate that issue. 132 I will not issue the writ of habeas corpus. But I will grant a stay effective until the question of the applicability of the penal provisions of § 10 of the Atomic Energy Act to this case can be determined by the District Court and the Court of Appeals, after which the question of a further stay will be open to the Court of Appeals or to a member of this Court in the usual order. 133 So ordered. 134 Application for stay of execution granted. * See 1948 Revised Criminal Code, 18 U.S.C.A. §§ 794, 2388. 1 2 Cir., 195 F.2d 583. 2 344 U.S. 838, 73 S.Ct. 20. The order noted that Mr. Justice Black was of the opinion that certiorari should be granted. 3 344 U.S. 889—890, 73 S.Ct. 134. The full text of the order reads: 'Motion for leave to file brief of Dr. W.E.B. Dubois and others as amici curiae denied. Petitions for rehearing denied. Memorandum filed by Mr. Justice Frankfurter in No. 111. Mr. Justice Black adheres to his view that the petitions for certiorari should be granted. 'Mr. Justice Frankfurter. 'Petitioners are under death sentence, and it is not unreasonable to feel that before life is taken review should be open in the highest court of the society which has condemned them. Such right of review was the law of the land for twenty years. By § 6 of the Act of February 6, 1889, 25 Stat. 655, 656, convictions in capital cases arising under federal statutes were appealable here. But in 1911 Congress abolished the appeal as of right, and since then death sentences have come here only under the same conditions that apply to any criminal conviction in a federal court. (§§ 128, 238, 240 and 241 of the Judicial Code, 36 Stat. 1087, 1133, 1157.) ** See 1948 Revised Judicial Code, 28 U.S.C.A. §§ 1254, 1291 et seq 'The Courts of Appeals are charged by Congress with the duty of reviewing all criminal convictions. These are courts of great authority and corresponding responsibility. The Court of Appeals for the Second Circuit was deeply conscious of its responsibility in this case. Speaking through Judge Frank, it said: 'Since two of the defendants must be put to death if the judgments stand, it goes without saying that we have scrutinized the record with extraordinary care to see whether it contains any of the errors asserted on this appeal.' 195 F.2d 583, 590. 'After further consideration, the Court has adhered to its denial of this petition for certiorari. Misconception regarding the meaning of such a denial persists despite repeated attempts at explanation. It means, and all that it means is, that there were not four members of the Court to whom the grounds on which the decision of the Court of Appeals was challenged seemed sufficiently important when judged by the standards governing the issue of the discretionary writ of certiorari. It also deserves to be repeated that the effective administration of justice precludes this Court from giving reasons, however briefly, for its denial of a petition for certiorari. I have heretofore explained the reasons that for me also militate against noting individual votes when a petition for certiorari is denied. See Chemical Bank & Trust Co. v. Group of Institutional Investors, 343 U.S. 982, 72 S.Ct. 1018 (96 L.Ed. 1372). 'Numerous grounds were urged in support of this petition for certiorari; the petition for rehearing raised five additional questions. So far as these questions come within the power of this Court to adjudicate, I do not, of course, imply any opinion upon them. One of the questions, however, first raised in the petition for rehearing, is beyond the scope of the authority of this Court, and I deem it appropriate to say so. A sentence imposed by a United States district court, even though it be a death sentence, is not within the power of this Court to revise.' 4 108 F.Supp. 798. 5 2 Cir., 200 F.2d 666. 6 345 U.S. 965, 73 S.Ct. 949. The full text of the order reads: 'Motions for leave to file briefs of National Lawyers Guild and Joseph Brainin for writ of certiorari to the United States ifor writ of certiorari to the United States Court of Appeals for the Second Circuit denied. The order of the United States Court of Appeals of February 17, 1953, granting a stay of execution is vacated. Mr. Justice Black and Mr. Justice Frankfurter, referring to the positions they took when these cases were here last November, adhere to them. 344 U.S. 889, 73 S.Ct. 134. Mr. Justice Douglas is of the opinion the petition for certiorari should be granted.' 7 345 U.S. 989, 73 S.Ct. 1151. The full text of the order reads: 'An application for stay of execution was filed herein on June 12, 1953. It was referred to Mr. Justice Jackson, the appropriate Circuit Justice. Mr. Justice Jackson referred it to the Court for consideration and action, with the recommendation 'that it be set for oral hearing on Monday, June 15, 1953, at which time the parties have agreed to be ready for argument.' 'Upon consideration of the recommendation, the Court declined to hear oral argument on the application. 'Mr. Justice Frankfurter and Mr. Justice Burton, agreeing with Mr. Justice Jackson's recommendation, believe that the application should be set for hearing on Monday, June 15, 1953. 'Thereupon, the Court gave consideration to the application for the stay, and denies it, Mr. Justice Burton joining in such denial. 'Mr. Justice Frankfurter and Mr. Justice Jackson, believing that the application for a stay should not be acted upon without a hearing before the full Court, do not agree that the stay should be denied. 'Mr. Justice Black is of the opinion that the Court should grant a rehearing and a stay pending fina disposition of the case. But since a sufficient number do not vote for a rehearing, he is willing to join those who wish to hear argument on the question of a stay. 'Mr. Justice Douglas would grant a stay and hear the case on the merits, as he thinks the petition for certiorari and the petition for rehearing present substantial questions. But since the Court has decided not to take the case, 73 S.Ct. 949, there would be no end served by hearing oral argument on the motion for a stay. For the motion presents no new substantial question not presented by the petition for certiorari and by the petition for rehearing.' 8 345 U.S. 1003, 73 S.Ct. 1151. The full text of the order reads: 'Petition for rehearing denied. Mr. Justice Frankfurter deems it appropriate to state once more that the reasons that preclude publication by the Court, as a general practice, of votes on petition for certiorari guide him in all cases, so that it has been his 'unbroken practice not to note dissent from the Court's disposition of petitions for certiorari.' Chemical Bank Co. v. Group of Institutional Investors, 343 U.S. 982, 72 S.Ct. 1018, 96 L.Ed. 1372; State of Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 652; Darr v. Burford, 339 U.S. 200, 227, 70 S.Ct. 587, 602, 94 L.Ed. 761; Agoston v. Com. of Pennsylvania, 340 U.S. 844, 71 S.Ct. 9, 95 L.Ed. 619; Bondholders, Inc., v. Powell, 342 U.S. 921, 72 S.Ct. 319, 96 L.Ed. 688; Rosenberg v. United States, 344 U.S. 889, 73 S.Ct. 134, Id., 345 U.S. 965, 73 S.Ct. 949. Partial disclosure of votes on successive stages of a certiorari proceeding does not present an accurate picture of what took place. 'Mr. Justice Black is of the opinion the petition for rehearing should be granted.' 9 346 U.S. 271, 73 S.Ct. 1152. The full text of the order reads: 'The motion for leave to file petition for an original writ of habeas corpus is denied. Mr. Justice Black dissents. 'Mr. Justice Frankfurter: 'The disposition of an application to this Court for habeas corpus is so rarely to be made by this Court directly that Congress has given the Court authority to transfer such an application to an appropriate district court. 28 U.S.C. § 2241, (28 U.S.C.A. § 2241). I do not favor such a disposition of this application because the substance of the allegations now made has already been considered by the District Court for the Southern District of New York and on review by the Court of Appeals for the Second Circuit. Neither can I join the Court in denying the application without more. I would set the application down for hearing before the full Court tomorrow forenoon. Oral argument frequently has a force beyond what the written word conveys.' 10 Counsel for the Rosenbergs was aware of the existence of the Atomic Energy Act, 42 U.S.C.A. § 1801 et seq., long before receiving the suggestion from counsel for Edelman. One argument, inter alia, advanced in the original certiorari petition, which was filed June 7, 1952, was that the sentence of death constituted cruel and unusual punishment in violation of the Eighth Amendment of the Constitution. The requirement of the Atomic Energy Act of an intent to injure the United States as a prerequisite to the death penalty (42 U.S.C. § 1810(b)(2) and (3) and § 1816, 42 U.S.C.A. §§ 1810(b)(2, 3) 1816), was cited in the petition in support of the cruel and unusual punishment argument. In the petition for certiorari, as well as the petition for rehearing, filed October 28, 1952, in regard to other contentions, counsel for the defendants cited Newman, Control of Information Relating to Atomic Energy, 56 Yale L.J. 769. That article deals extensively with the relationship of sentences under the Atomic Energy Act and under the Espionage Act. 11 346 U.S. 322, 73 S.Ct. 1178. The order denying a further stay read: 'Motion of the petitioners for a further stay of the execution, as set forth in the written motion, is denied. 'Mr. Justice Black, dissenting. 'Mr. Justice Frankfurter. 'On the assumption that the sentences against the Rosenbergs are to be carried out at 11 o'clock tonight, their counsel ask this Court to stay their execution until opportunity has been afforded to them to invoke the constitutional prerogative of clemency. The action of this Court, and the division of opinion in vacating the stay granted by Mr. Justice Douglas, 346 U.S. 324, 73 S.Ct. 1178, are, of course, a factor in the situation, which arose within the last hour. It is not for this Court even remotely to enter into the domain of clemency reserved by the Constitution exclusively to the President. But the Court must properly take into account the possible consequences of a stay or of a denial of a stay of execution of death sentences upon making an appeal for executive clemency. Were it established that counsel are correct in their assumption that the sentences of death are to be carried out at 11 p.m. tonight, I believe that it would be right and proper for this Court formally to grant a stay with a proper time-limit to give appropriate opportunity for the process of executive clemency to operate. I justifiably assume, however, that the time for the execution has not been fixed as of 11 o'clock tonight. Of course I respectfully assume that appropriate consideration will be given to a clemency application by the authority constitutionally charged with the clemency function.' The order denying a rehearing on the question of our power to vacate the stay read (73 S.Ct. 1178): 'The motion for reconsideration of the question of the Court's power to vacate Mr. Justice Douglas' stay order and hear oral argument is denied. 'Mr. Justice Black, dissenting. 'Mr. Justice Frankfurter desires that it be noted that he too would deny the motion to reconsider the power of this Court to review Mr. Justice Douglas' order to stay the execution, but not because he thinks the matter is free from doubt. See his dissenting opinion in Ex parte Republic of Peru, 318 U.S. 578, 590, 63 S.Ct. 793, 800, 87 L.Ed. 1014, in connection with Lambert v. Barrett, 157 U.S. 697, 15 S.Ct. 722, 39 L.Ed. 865, and Carper v. Fitzgerald, 121 U.S. 87, 7 S.Ct. 825, 30 L.Ed. 882.' 12 See, e.g., Land v. Dollar, 1951, 341 U.S. 737, 71 S.Ct. 987, 95 L.Ed. 1331; Johnson v. Stevenson, 1948, 335 U.S. 801, 69 S.Ct. 6, 93 L.Ed. 359. * 1948 Revised Criminal Code, 18 U.S.C.A. § 794. * See Newman and Miller, The Control of Atomic Energy, p. 235 (1948); Newman, Control of Information Relating to Atomic Energy, 56 Yale L.J. 769, 790 (1947). While § 10(b)(6) additionally contains an exception, providing that 'no Government agency shall take any action under such other laws inconsistent with the provisions of this section,' that exception is not applicable here. As disclosed by the legislative history of the Act (which must be read to refer to § 10(b)(6)), it 'prohibits any agency from placing information in a restricted category under the authority of this or any other law once such information has been released from the category by official action of the Atomic Energy Commission.' S.Rep.No.1211, 79th Cong., 2d Sess., p. 24. And see 92 Cong.Rec. 6096 (1946): 'Section 10 also establishes the Commission as the top authority in the Government with reference to what will or will not remain as restricted data * * *.' * The Government cites 28 U.S.C. § 2106 and § 1651, 28 U.S.C.A. §§ 2106, 1651, as statutory authority for the Court's action in dissolving the stay granted by Mr. Justice Douglas. Neither statute authorizes the Court's action. Section 2106 provides: 'The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.' But the plain words of this section exclude the case here. Those words say this Court may affirm, etc., any 'judgment, decree, or order of a court * * *.' But no court order is before us. Nor can the Government take comfort in § 1651. It says only that '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.' The statute says nothing about dissolution of a stay order. 1 Natually enough the Government and the Court 'do not doubt that Mr. Justice DOUGLAS had power to issue the stay in this proceeding.' How could there be doubt about a power that has existed uninterruptedly ever since Congress gave it by the Act of September 24, 1789? Section 14 of the First Judiciary Act, 1 Stat. 73, 81—82. 2 It is worth noting that under the Atomic Energy Act it is very probably not necessary, since the Act, unlike the Espionage Act, does not make it a requirement, to prove overt acts in furtherance of a conspiracy. Cf. Singer v. United States, 323 U.S. 338, 65 S.Ct. 282, 89 L.Ed. 285. If so, under the Atomic Energy Act it would not have been necessary to allege or prove an overt act involving atomic espionage subsequent to 1946 in order to obtain a conviction on a conspiracy indictment such as the one here. It is not without significance that the relevance of this point was not considered by the Government in its argument or submission. This is significant not because it discloses a failure of counsel, but because to require consideration of this and other points within twenty-four hours after a complex of problems was first put forward is to presuppose omniscient lawyers. 3 'In order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial. He may have conceived the charge under one statute which would not sustain the indictment, but it may nevertheless come within the terms of another statute. See Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509. On the other hand, an indictment may validly satisfy the statute under which the pleader proceeded, but other statutes not referred to by him may draw the sting of criminality from the allegations.' United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 464, 85 L.Ed. 788. 4 That the Atomic Energy Act is not a pellucid piece of draftsmanship so that he who runs may read is indicated by this general observation of Mr. Newman: 'Skillful administration and careful judicial consideration will be needed to reconcile the apparent inconsistencies and to effect the evident intent of Congress—regardless of the labyrinth of confusion that inadequate drafting has created.' 56 Yale L.J., at 791. Some of the specific difficulties laid bare by Mr. Newman are of immediate relevance to the problem before the Court: 'It is reasonable to suppose that Congress did not intend to give the prosecuting attorney the option of moving under the Espionage Act instead of the Atomic Energy Act where an offense involving information relating to atomic energy is specifically described in the latter and only broadly and generically encompassed by the former. On the other hand this judgment creates an intellectual predicament. Its acceptance might mean that while the disclosure of information relating to the construction of a machine gun, may, under given circumstances, be punishable by death, the disclosure of information relating to the exact construction of an atomic bomb, would not, under the same circumstances, be punishable by more than 10 years' imprisonment. But in spite of its anomalous consequences the conclusion seems inescapable. When Congress adopted Section 10 of the Atomic Energy Act it intended to prescribe the exact punishment to be applied for all violations involving the unlawful dissemination of restricted atomic energy data. And, in stating in Section 10(b)(6) that the applicable provisions of other laws were not to be excluded, it meant to guard against possible omissions, rather than to give a prosecutor the option of proceeding under other laws against offenses fully covered by the Atomic Energy Act for the sole reason that under such other laws these offenses bore heavier penalties.' 56 Yale L.J., at 797—798. Finally, this specially qualified student of the Act concludes that the conflicts and inconsistencies which he laid bare regarding the penalty provisions can only be resolved, as such conflicts and inconsistencies inevitably are resolved, by adjudication: 'Differing penalty provisions: The difference can only be resolved by judicial decision. Fortunately, this raises problems within judicial proceedings as such and does not pose any difficulties or dilemmas for the Commission in administering the Act.' 56 Yale L.J., at 799. * Attached hereto as an Appendix. * 1948 Revised Criminal Code, 18 U.S.C.A. § 794. * 1948 Revised Criminal Code, 18 U.S.C.A. § 794. 1 It would seem that the secrets involved in this case were "restricted data" within the meaning of the Act. Section 10(b)(1) defines that term as meaning "all data concerning the manufacture or utilization of atomic weapons, the production of fissionable material, or the use of fissionable material in the production of power, but shall not include any data which the Commission from time to time determines may be published without adversely affecting the common defense and security." 2 Thus the Government's brief filed July 25, 1952 in opposition to the petitions of the Rosenbergs and of Sobell for certiorari stated: "In February 1950, when the arrest of Klaus Fuchs was publicized, Julius (Rosenberg) went to David (Greenglass) and told him that Fuch's contact was the man who had got data from Ruth and David in June 1945; that Fuchs' arrest meant that the Greenglasses' activities would be discovered; and that therefore they would have to leave the country (R. 523). These warnings were renewed at the time of the arrest of Harry Gold (R. 525-526, 709) in May 1950. During that month, Julius gave David $1,000, and promised him more, in order that David and Ruth might discharge their obligations and leave the country (R. 526, 710). In addition, he gave them specific and detailed instructions as to how to get to Mexico and ultimately to the Soviet Union (R. 526-530, 710). "Julius informed the Greenglasses that he and his wife also were going to flee and that they would meet the Greenglasses in Mexico (R. 529, 713). Rosenberg did, in fact, ascertain from his physician what inoculations were needed for a trip to Mexico (R. 851), and he had passport pictures taken of himself and his family (R. 1427-1429). "On May 30, 1950, in accordance with Julius' request, the Greenglasses had six sets of passport pictures taken, five of which they gave to Julius (R. 530-531, 712). The sixth set was retained by Greenglass and introduced in evidence at the trial (R. 531, 712; Ex. 9A, 9B). A week later, Julius visited the Greenglasses' apartment and gave David $4,000 wrapped in brown paper (R. 532, 713; Ex. 10). He asked David to repeat the flight instructions, which David did (R. 532-533). David gave the $4,000 to his brother-in-law, Louis Abel, who, after David's arrest, turned it over to the latter's lawyer (R. 536, 713, 794-795)." 3 The Government's brief dated July 25, 1952, in opposition to the petitions for certiorari filed by the Rosenbergs and by Sobell summarized some of Sobell's activities as follows: "In June 1948, (Max) Elitcher decided to leave the Bureau of Ordnance to take a job in New York (R. 256). When he informed Sobell of his plans, the latter urged him not to do anything until he discussed the matter with Rosenberg (R. 256).* Pursuant to arrangements made by Sobell, Elitcher met Rosenberg and Sobell in midtown New York (R. 256-257). When Rosenberg was told about Elitcher's plans, he tried to persuade Elitcher to remain in Washington, stating that he needed a source of information in the Navy Department (R. 257). Rosenberg further stated that he had already made plans for Elitcher to meet a contact in Washington (R. 257). During this conversation, Sobell also attempted to persuade Elitcher to stay at the Bureau of Ordnance; he told Elitcher 'Well, Rosenberg is right, Julie is right; you should do that' (R. 257). "Sobell then left and Elitcher had dinner with Rosenberg (R. 257). During the course of dinner, Rosenberg said that money could be made available for the purpose of sending Elitcher to school to improve his technical status (R. 258). Elitcher asked Rosenberg how he had got 'started in this venture' (R. 258). Rosenberg replied that a long time ago he had decided that this was what he wanted to do; that he made it a point to get close to people in the Communist Party and kept getting from one person to another until he finally succeeded in approaching a Russian 'who would listen to his proposition concerning this matter of getting information to Russia' (R. 258). "A month later, in July 1948, Elitcher drove with his family from Washington, D.C., to New York City, preparatory to changing his job (R. 259). On the way, he noticed that he was being followed (R. 259-260). Upon his arrival in New York, he proceeded to Sobell's home, where he planned to stay overnight (R. 259). When Elitcher told Sobell of his fear that he had been followed, Sobell became angry and said that Elitcher should not have come to his house; that he had some valuable information in the house that he should have given Rosenberg some time ago, information that was 'too valuable to be destroyed and yet too dangerous to keep around' (R. 260-261). Over Elitcher's protests, Sobell insisted the information be delivered to Rosenberg that night. Sobell then took at 35 millimeter film can from his house, and, accompanied by Elitcher, drove to Manhattan. While Elitcher waited in the car, Sobell left to deliver the can to Rosenberg. When Sobell returned, Elitcher asked him what Rosenberg though about his being followed (R. 261). Sobell replied that Rosenberg said that he had 'once talked to Elizabeth Bentley on the phone but he was pretty sure she didn't know who he was and therefore everything was all right' (R. 261). The two then returned to Sobell's house (R. 261)." * Elitcher testified that Sobell said, 'Don't do anything before you see me. I want to talk to you about it, and Rosenberg also wants to speak to you about it' (R. 256). Elitcher, nonetheless, did not change his mind, and shortly afterwards changed his employment (R. 257, 255).
01
346 U.S. 322 73 S.Ct. 1178 97 L.Ed. 1633 Julius ROSENBERG and Ethel Rosenbergv.UNITED STATES of America. No. ____. Special Term 1953. Supreme Court of the United States June 19, 1953 PER CURIAM. 1 Motion of the petitioners for a further stay of the execution, as set forth in the written motion, is denied. 2 Mr. Justice FRANKFURTER. 3 On the assumption that the sentences against the Rosenbergs are to be carried out at 11 o'clock tonight, their counsel ask this Court to stay their execution until opportunity has been afforded to them to invoke the constitutional prerogative of clemency. The action of this Court, and the division of opinion in vacating the stay granted by Mr. Justice DOUGLAS, 346 U.S. 313, 73 S.Ct. 1173, are, of course, a factor in the situation, which arose within the last hour. It is not for this Court even remotely to enter into the domain of clemency reserved by the Constitution exclusively to the President. But the Court must properly take into account the possible consequences of a stay or of a denial of a stay of execution of death sentences upon making an appeal for executive clemency. Were it established that counsel are correct in their assumption that the sentences of death are to be carried out at 11 p.m. tonight, I believe that it would be right and proper for this Court formally to grant a stay with a proper time-limit to give appropriate opportunity for the process of executive clemency to operate. I justifiably assume, however, that the time for the execution has not been fixed as of 11 o'clock tonight. Of course I respectfully assume that appropriate consideration will be given to a clemency application by the authority constitutionally charged with the clemency function. 4 Mr. Justice BLACK, dissenting.
01
346 U.S. 327 74 S.Ct. 2 98 L.Ed. 4 FEDERAL TRADE COMMISSIONv.CARTER PRODUCTS, Inc. No. 114. Oct. 12, 1953. PER CURIAM. 1 Certiorari is granted and the judgment of the Court of Appeals is vacated. The cause is remanded to the Court of Appeals with directions to reinstate its prior judgment and order after amending it so that it specifically authorizes the Federal Trade Commission to open this proceeding for further evidence and a new order consistent with the Court of Appeals opinion herein. Cf. Reilly v. Pinkus, 338 U.S. 269, 277, 70 S.Ct. 110, 114, 94 L.Ed. 63; National Labor Relations Board v. Donnelly Garment Co., 330 U.S. 219, 224—228, 67 S.Ct. 756, 759—761, 91 L.Ed. 854. 2 Mr. Justice DOUGLAS dissents. 3 The CHIEF JUSTICE took no part in the consideration or decision of this case.
89
346 U.S. 338 74 S.Ct. 83 98 L.Ed. 39 OLBERDING et alv.ILLINOIS CENT. R. CO., Inc. No. 27. Argued Oct. 15, 1953. Decided Nov. 9, 1953. Mr. William L. Mitchell, Evansville, Ind., for petitioners. Mr. James G. Wheeler, Paducah, Ky., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 For present purposes the facts may be briefly stated. The railroad brought suit in the United States District Court for the Western District of Kentucky against Olberding, the owner of a truck, which, while on temporary business in Kentucky, collided with an overpass of the railroad, causing a subsequent derailment. Jurisdiction was based on diversity of citizenship, plaintiff being an Illinois corporation and Olberding a citizen of Indiana. Olberding was apprised of the action through service of process on the Secretary of State in Frankfort, Kentucky, according to the Kentucky Non-resident Motorist Statute.1 He entered a special appearance and moved that the case be dismissed on the ground of improper venue. The motion was overruled and the case went to trial, resulting in a verdict for the plaintiff. The Court of Appeals for the Sixth Circuit affirmed, 201 F.2d 582. Its ruling on venue, in the situation here presented, is in direct conflict with that of the First Circuit in Martin v. Fishbach Trucking Co., 183 F.2d 53, with which the Third Circuit has recently agreed, McCoy v. Siler, 205 F.2d 498. To resolve the conflict, we granted certiorari. 345 U.S. 950, 73 S.Ct. 867. 2 This is a horse soon curried. Congress, in conferring jurisdiction on the district courts in cases based solely on diversity of citizenship, has been explicit to confine such suits to 'the judicial district where all plaintiffs or all defendants reside.' 28 U.S.C. § 1391(a), 28 U.S.C.A. § 1391(a). This is not a qualification upon the power of the court to adjudicate, but a limitation designed for the convenience of litigants, and, as such, may be waived by them. The plaintiff, by bringing the suit in a district other than that authorized by the statute, relinquished his right to object to the venue. But unless the defendant has also consented to be used in that district, he has a right to invoke the protection which Congress has afforded him. The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a 'liberal' construction. 3 It is not claimed that either the corporate plaintiff or the individual defendant here was a 'resident' of Kentucky. The sole reason why the plaintiff was allowed to bring this action in the federal court of Kentucky was that a consent to be sued in that state was attributed to the defendant. And this attribution was then made the basis of a waiver of his rights under the federal venue provision. Concededly the defendant did not in fact consent. He impliedly consented, so the argument runs, to be sued in the federal court of Kentucky simply by driving his automobile on the highways of Kentucky, which has the familiar statute holding non-resident motorists amenable to suit for accidents caused by their negligent operations within the State. 4 It is true that in order to ease the process by which new decisions are fitted into pre-existing modes of analysis there has been some fictive talk to the effect that the reason why a non-resident can be subjected to a state's jurisdiction is that the non-resident has 'impliedly' consented to be sued there. In point of fact, however, jurisdiction in these cases does not rest on consent at all. See Scott, Jurisdiction over Nonresident Motorists, 39 Harv.L.Rev. 563. The defendant may protest to high heaven his unwillingness to be sued and it avails him not. The liability rests on the inroad which the automobile has made on the decision of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, as it has on so many aspects of our social scene. The potentialities of damage by a motorist, in a population as mobile as ours, are such that those whom he injures must have opportunities of redress against him provided only that he is afforded an opportunity to defend himself. We have held that this is a fair rule of law as between a resident injured party (for whose protection these statutes are primarily intended) and a non-resident motorist, and that the requirements of due process are therefore met. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. But to conclude from this holding that the motorist, who never consented to anything and whose consent is altogether immaterial, has actually agreed to be sued and has thus waived his federal venue rights is surely to move in the world of Alice in Wonderland. The fact that a non-resident motorist who comes into Kentucky can, consistent with the Due Process Clause of the Fourteenth Amendment, be subjected to suit in the approppriate Kentucky state court has nothing whatever to do with his rights under 28 U.S.C. § 1391(a), 28 U.S.C.A. § 1391(a). 5 This conclusion is entirely loyal to the decision and reasoning of Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. There the defendant, a Delaware corporation, was sued by a non-resident of New York in the United States District Court for the Southern District of New York, and we found the venue requirements of what is now 28 U.S.C. § 1391(a), 28 U.S.C.A. § 1391(a) satisfied because Bethlehem had designated an agent in New York 'upon whom a summons may be served within the State of New York.' 308 U.S. at page 175, 60 S.Ct. at page 158, 84 L.Ed. 167. We held that this constituted an 'actual consent' to be sued in New York, not the iess so because it was 'part of the bargain by which Bethlehem enjoys the business freedom of the State of New York'. Ibid. We further held, following Ex parte Schollenberger, 96 U.S. 369, 377, 24 L.Ed. 853, that this consent extended to all courts sitting in New York, both federal and state. Of course this doctrine would equally apply to an individual defendant in situations where a state may validly require the designation of an agent for service of process as a condition of carrying on activities within its borders, and such designation has in fact been made. See Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222. But here no such designation was required or made, and hence the Neirbo case has no applicability. The judgment is 6 Reversed. 7 Mr. Justice DOUGLAS concurs in the result. 8 Mr. Justice REED, with whom Mr. Justice MINTON joins, dissenting. 9 The unfortunate effect of this decision on federal venue, its uniformity and availability, in so important a field as torts by out-of-state motorists, causes me to dissent from the views of the Court. Under Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, a different doctrine of venue would be applied to motor torts committed by foreign corporations doing business in a state than is applied to an individual motorist driving his own car through a state. From the opinion I would assume that a corporation not doing business in a state but causing a car to be driven therein would be immune from suits for torts in the federal courts in that state. The decision bars a non-resident injured party from seeking damages, on allegation of diversity, from a nonresident motor operator or owner in the United States District Court having jurisdiction over the place of the accident in which the motor vehicle is involved. 10 No question is or can now be raised against the constitutionality of the Kentucky statute to secure the presence of an out-of-state motorist in the state courts to respond to damages. It is the form generally approved for protection against our-of-state wrongdoers by motor operation, and is not subject to attack for lack of due process.1 The single issue decided by the Court is that such process does not waive venue under 28 U.S.C. § 1391(a), 28 U.S.C.A. § 1391(a): 11 'A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside.' 12 The provision was substantially the same when the Neirbo case was decided. The clause then read: 13 '* * * but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.' 14 In Neirbo we held that since the foreign corporation had consented to be sued in the courts of the state, the consent extended to the federal courts sitting in the state. 308 U.S. at pages 171, 175, 60 S.Ct. at pages 156, 158, 84 L.Ed. 167. The same reasoning that led to the subjection of foreign corporations to federal litigation in the Neirbo case leads me to the conclusion that the out-of-state motorist should likewise be so held. The motor car has lengthened the radius of the individual's activities. We have upheld the constitutional power of the states to compel redress of wrongs, through the use of the automobile, at the place of their happening. It is done through the consent of the party benefiting from his privilege to use the highways of the state. The District Courts have consistently ruled that the appointment of an agent for service of process by driving on state highways is a waiver of federal venue.2 15 I see no difference of substance between the signing of a paper under the New York statute upon which Neirbo is based and the acceptance, by action in driving a motor car, of the privilege of using state highways under the Kentucky statute. In each case there was no federal venue except by waiver and consent. Both the Neirbo Corporation and this out-of-state motorist, in my opinion, waived objection to federal venue. The Hess case determined that the difference between the 'formal and implied appointment' of an agent for service 'is not substantial' under the Due Process Clause. 274 U.S. at page 357, 47 S.Ct. at page 633, 71 L.Ed. 1091.3 The Neirbo case held that consent to service on an agent for service of process waived objection to federal venue. The same rule if applied to this situation would achieve a like desirable result, trial at the logical place, the location of the incident that gives rise to the cause of action. 16 I would affirm the judgment. 1 Ky.Rev.Stat.1953, §§ 188.020—188.030. The Kentucky statute, like the one upheld in Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, in substance provides that a non-resident motorist who operates his automobile on the state's highways makes the Secretary of State his agent for service of process in any civil action arising out of such operation. There is also set up a procedure for serving the summons on the Secretary of State, who in turn is to notify the non-resident defendant by registered mail. On the other hand, the statute under consideration in Kane v. State of New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222, specifically required the nonresident motorist to register his vehicle annually and formally to designate the Secretary of State an agent upon whom process might be served. Penalties were provided for use of the state's roads without complying with these requirements. 1 Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. The statute there involved so far as pertinent read: 'The acceptance by a nonresident of the rights and privileges conferred by section three or four, as evidence by his operating a motor vehicle thereunder, or the operation by a nonresident of a motor vehicle on a public way in the commonwealth other than under said sections, shall be deemed equivalent to an appointment by such nonresident of the registrar or his successor in office, to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against him, growing out of any accident or collision in which said nonresident may be involved while operating a motor vehicle on such a way, and said acceptance or operation shall be a signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as if served on him personally.' Mass.Acts 1923, c. 431, § 2. In Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, the provision was for a designation by the corporation 'of the secretary of state as its agent upon whom all process in any action or proceedings against it may be served within this state.' McKinney's N.Y.Consol.Laws, c. 23, General Corporation Law, § 210. The Kentucky statute in this case reads: 'Any nonresident operator or owner of any motor vehicle who accepts the privilege extended by the laws of this state to nonresidents to operate motor vehicles or have them operated within this state shall, by such acceptance and by the operation of such motor vehicle within this state, make the Secretary of State his agent for the service of process in any civil action instituted in the courts of this state against the operator or owner arising out of or by reason of any accident or collision or damage occurring within this state in which the motor vehicle is involved.' Ky.Rev.Stat. 1948, § 188.020. 2 Falter v. Southwest Wheel Co., D.C., 109 F.Supp. 556; Archambeau v. Emerson, D.C., 108 F.Supp. 28; Jacobson v. Schuman, D.C., 105 F.Supp. 483; Kostamo v. Brorby, D.C., 95 F.Supp. 806; Burnett v. Swenson, D.C., 95 F.Supp. 524; Thurman v. Consolidated School Dist., D.C., 94 F.Supp. 616; Urso v. Scales, D.C., 90 F.Supp. 653; Steele v. Dennis, D.C., 62 F.Supp. 73; Krueger v. Hider, D.C., 48 F.Supp. 708. Contra: Waters v. Plyborn, D.C., 93 F.Supp. 651. 3 Cf. Knott Corp. v. Furman, 4 Cir., 163 F.2d 199. In this case plaintiff, a citizen of Massachusetts, sued the corporation in the United States District Court for the Eastern District of Virginia, for injuries received during a hotel fire. The defendant, a Delaware corporation, operated the hotel on a United States military reservation. No written appointment of any state officer as agent for service of process had been filed by the corporation. Venue was challenged and the Fourth Circuit ruled that the corporation had waived the federal venue provisions under a statute which read: '3. If any such company shall do business in this State without having appointed the Secretary of the Commonwealth its true and lawful attorney as required herein, it shall be doing such business in the State of Virginia be deemed to have thereby appointed the Secretary of the Commonwealth its true and lawful attorney for the purposes hereinafter set forth.' Va.Code Supp.1946, § 3846a. The language of this statute is certainly analogous to that of the Kenutucky statute, n. 1, supra.
89
346 U.S. 346 74 S.Ct. 92 98 L.Ed. 51 ATCHISON, T. & S.F. RY. CO.v.PUBLIC UTILITIES COMMISSION OF CALIFORNIA et al. SOUTHERN PAC. CO. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA et al. Nos. 22, 43. Argued Oct. 14, 15, 1953. Decided Nov. 9, 1953. No. 22: Mr. Douglas F. Smith, Chicago, Ill. for appellant Atchison, T. & S.F. ry. co. Mr. Roger Arnebergh, Los Angeles, Cal., for appellees. No. 43: Mr. Burton Mason, San Francisco, Cal., for appellant Southern Pac. Co. Mr. Hal F. Wiggins, for appellees. Mr. Justice MINTON delivered the opinion of the Court. 1 These cases present the same questions of law and will be disposed of together. The Public Utilities Commission of California entered orders1 authorizing th construction of certain grade separation improvements and allocating the costs therefor, pursuant to § 1202 of the Public Utilities Code of California.2 On petitions to the Supreme Court of California, that court denied review of the Commission's orders,3 and these appeals followed. We postponed jurisdiction until a hearing on the merits. 2 We think the Commission's orders must be treated as an act of the legislature for purposes of determining our jurisdiction under 28 U.S.C. § 1257(2). Live Oak Water Users' Ass'n v. Railroad Commission of State of California, 269 U.S. 354, 356, 46 S.Ct. 149, 150, 70 L.Ed. 305; Lake Erie & Western R. Co. v. State Public Utilities Commission of Illinois ex rel. Cameron, 249 U.S. 422, 424, 39 S.Ct. 345, 346, 63 L.Ed. 684. The Commission has construed § 1202 as authorizing these orders. The appellants presented squarely to the Supreme Court of California their contention that in the allocation of costs, these orders take their property without due process of law and are so arbitrary and burdensome as to constitute an interference with interstate commerce, in violation of the Constitution of the United States. In sustaining the Commission's orders by denying writs of review, the Supreme Court of California upheld the statute as applied by the Commission, and the cases are properly here on appeal. Kansas City Southern Ry. Co. v. Road Improvement District No. 6 of Little River County, Ark., 256 U.S. 658, 659—660, 41 S.Ct. 604, 605, 65 L.Ed. 1151. 3 The principal question presented by these appeals is whether the allocation of the reasonable cost of grade separation improvements is arbitrary as to the railroads unless imposed on the basis of benefits received, or, since the costs are incurred in the exercise of the police power in the interest of public safety, convenience and necessity, may they be allocated on the basis of fairness and reasonableness. 4 No. 22. 5 In this case, the Commission authorized the enlarging of two existing railroad underpasses where the Santa Fe tracks cross Washington Boulevard in Los Angeles. These underpasses were constructed in 1914 under an agreement between the railroad and the City providing that each party was to pay one-half of the cost. The Commission found the structures to be 75% depreciated. When constructed, their chief utility was to facilitate access to a garbage reduction plant. Washington Boulevard is now one of the main east and west thoroughfares of Los Angeles, and other streets and highways feed into it. It is not a part of the State highway system nor is it a freeway. The grade separations concerned here are in one of the principal industrial districts of the City and are a traffic bottleneck. For most of its length, Washington Boulevard is 60 feet wide, but at the site in question, the roadway narrows to 20 feet, with a vertical clearance of less than 14 feet. The City's easement at this point is 90 feet. As improved, two 33-foot roadways and two 7-foot sidewalks will be provided, and the underpasses will be heightened. The improvement is being made to promote the safety and convenience of the public and to meet vastly increased local transportation needs, made necessary by the rapid growth of the City. In 1910, the City had a population of 102,000, in 1920 of 576,000, and in 1948 of 1,987,000. Los Angeles County's population in 1910 was 504,000 and in 1948 was over four million. Vehicular traffic in the area has increased tremendously since construction of the present underpasses in 1914. 6 Considering all of these facts and evidence by the railroad that there were no benefits to be derived by the railroad from this improvement, the Commission decided that there 'is a need for widening and increasing the height of the existing underpasses,'4 and that the preferred plan submitted by the City of Los Angeles 'sets out the construction which would be most practicable and best meet the public safety, convenience and necessity in this matter.'5 The Commission found that $569,355 of the cost was attributable to the presence of the railroad tracks and that the railroad should pay 50% of this amount and the City 50%. 7 No. 43. 8 This case does not differ materially from Case No. 22 except that here a grade crossing will be replaced by an underpass. Los Feliz Boulevard runs in a northeast-southwest direction, crossing at grade five Southern Pacific tracks approximately at the boundary of the cities of Los Angeles and Glendale. The street becomes known as Los Feliz Road in Glendale. Los Feliz is not a part of the State highway system nor is it a freeway, but, like Washington, Boulevard, is an access street for adjacent properties and for other streets feeding into it in this congested area and as a through street has reached capacity. When the crossing is blocked by trains, 38 or more vehicles may back up in each of three lanes, causing a 'backlash' on San Fernando Road, 820 feet distant. The crossing now has manually-operated crossing gates, and several relatively minor accidents have occurred there during the last 25 years. The plan approved by the Commission passes the street under the railroad tracks, with two 40-foot roadways, separated by a median strip and with 5-foot sidewalks on each side. The structure when completed will be 105 feet wide. The total cost necessitated by the presence of the tracks was estimated at $1,493,200. The Commission ordered that 50% be borne by the railroad, 25% by Los Angeles County, and 12 1/2% each by the cities of Los Angeles and Glendale. Construction of the grade separation was found by the Commission to be 'in the interest of public safety, convenience and necessity * * *.'6 9 In each of these cases, the railroads introduced evidence intended to show that their share of the costs should be based on benefits received and that they would receive little or no benefit from the construction. For the most part, this evidence related to the nature of the traffic on the boulevards, the fact that the improvements are required primarily to facilitate traffic flow on the streets, the 'revolution' in transportation that has occurred since the early part of this century and its effect on the reasons for constructing grade separations and on the financial position of railroads, the competition afforded railroads by motor vehicles utilizing the public streets and highways, and the effect of the proposed construction on operation of the railroads. The appellants contended that the costs should be distributed on the basis of benefits, and since the railroads would receive little or no benefits, they should be required to pay only a small part of the costs or nothing, as the case may be. The cities contended in both cases that the railroads should bear all the costs attributable to the presence of the tracks. After lengthy hearings and after considering all the evidence and the arguments advanced, the Commission decided that it was not bound to follow any particular theory in apportioning the costs but may allocate the costs in the exercise of its sound discretion. 10 Wo do not understand the appellants to contest the right of the Commission to enter the orders or the reasonableness of the estimated costs. Their principal contention is that as to them the cost of the improvements may be distributed only on the basis of benefits which will accrue to their property. In this contention, we think the appellants are in error. These were not improvements whose purpose and end result is to enhance the value of the property involved by reason of the added facilities, such as street, sewer or drainage projects, where the costs assessed must bear some relationship to the benefits received. Chesebro v. Los Angeles County Flood Control Dist., 306 U.S. 459, 59 S.Ct. 622, 83 L.Ed. 921; Valley Farms Co. of Yonkers v. Westchester County, 261 U.S. 155, 43 S.Ct. 261, 67 L.Ed. 585; Kansas City Southern Ry. Co. v. Road Improvement District No. 6 of Little River County, Ark., supra; Gast Realty & Invenstment Co. v. Scheneider Granite Co., 240 U.S. 55, 36 S.Ct. 400, 60 L.Ed. 1239. 11 Rather, in the cases at bar, the improvements were instituted by the State or its subdivisions to meet local transportation needs and further safety and convenience, made necessary by the rapid growth of the communities. In such circumstances, this Court has consistently held that in the exercise of the police power, the cost of such improvements may be allocated all to the railroads. Erie R. Co. v. Board of Public Utility Com'rs, 254 U.S. 394, 409—411, 41 S.Ct. 169, 170—171, 65 L.Ed. 322; Missouri Pacific R. Co. v. City of Omaha, 235 U.S. 121, 127, 35 S.Ct. 82, 83, 59 L.Ed. 157; Chicago, M. & St. P.R. Co. v. City of Minneapolis, 232 U.S. 430, 441, 34 S.Ct. 400, 402, 58 L.Ed. 671; Cincinnati, I. & W.R. Co. v. City of Connersville, 218 U.S. 336, 344, 31 S.Ct. 93, 94, 95, 54 L.Ed. 1060. There is the proper limitation that such allocation of costs mush be fair and reasonable. Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 415, 55 S.Ct. 486, 488, 79 L.Ed. 949, and the cases there cited. This was the standard applied by the Commission. It was not an arbitrary exercise of power by the Commission to refuse to allocate costs on the basis of benefits alone. The railroad tracks are in the streets not as a matter of right but by permission from the State or its subdivisions. The presence of these tracks in the streets creates the burden of constructing grade separations in the interest of public safety and convenience. Having brought about the problem, the railroads are in no position to complain because their share in the cost of all eviating it is not based solely on the special benefits accruing to them from the improvements. 12 The appellants rely heavily on the Nashville case, supra, but that decision is in accord with the long-established rule which we here follow and which the Commission applied. As this Court said in the Nashville case: 'The claim of unconstitutionality rests wholly upon the special facts here shown.' 294 U.S. at page 413, 55 S.Ct. at page 487. In that case, the railroad's share of the cost was fixed at 50% by a Tennessee statute and no consideration was given by the Supreme Court of Tennessee as to whether the application of the statutory amount was unreasonable under the special facts advanced. The grade separation ordered in the Nashville case was located in the rural community of Lexington, Tennessee, which had a population in 1910 of 1,497, in 1920 of 1,792, and in 1930 of 1,823. The improvement was not required to meet the transportation needs of Lexington and was being constructed without regard to that community's growth or to considerations of public safety and convenience resulting from such growth. The highway there under improvement was part of the State highway system and the grade was to be removed primarily as part of economic and engineering planning and to qualify the improvement of the highway for federal aid. Other facts offered pointed principally to the state and nation-wide nature of the highway system and the particular highway there involved, the competition afforded railroads by the users of such highways and the effect of such competition on the revenues of the railroads, and the increasing importance of grade separations as a means of assuring rapid movement of motor vehicles rather than as an exclusively safety measure. 13 As stated by this Court, '(t)he main contention is that to impose upon the railway, under these circumstances, one-half of the cost is action so arbitrary and unreasonable as to deprive it of property without due process of law in violation of the Fourteenth Amendment.' 294 U.S. at page 413, 55 S.Ct. at page 487. Thus, the contention of the railroad and the rule recognized by this Court in the Nashville opinion was that there could be an allocation of costs subject to the limitation that they be allocated always with regard to the rule against unreasonableness and arbitrariness. The judgment of the Supreme Court of Tennessee was reversed and the case remanded thereto because that court had refused to consider whether the special facts shown 'were of such persuasiveness as to have required the state court to hold that the statute and order complained of are arbitrary and unreasonable. That determination should, in the first instance, be made by the Supreme Court of the state.' 294 U.S. at pages 432 433, 55 S.Ct. at page 496. 14 In our cases, not only are the facts distinguishable in many material particulars but unlike the Supreme Court of Tennessee which refused to consider the facts to determine whether the statute's allocation of 50% was arbitrary or unreasonable, the California Commission considered all the evidence offered, including that going to the benefits received, and properly applied the rule of allocation sanctioned by this Court, and the California Supreme Court found no occasion to review the Commission's orders. There is no showing on these records of arbitrariness or unreasonableness in the Commission's orders, and none is claimed except as the Commission refused to allocate costs on the basis of benefits received, which we hold it was not required to do. 15 It is next contended that the allocation of grade separation costs against the railroads in excess of benefits received constitutes an undue burden on interstate commerce. We have decided that there is no showing that the orders here under attack were arbitrary or unreasonable. Certainly, if the Commission has the right to order these improvements and has not, in allocating the costs, acted so arbitrarily as to deprive the railroads of their property without due process of law, the fact that the improvements may interfere with interstate commerce is incidental. The construction and use of public streets is a matter peculiarly of local concern and great leeway is allowed local authorities where there is no conflicting federal regulation, even though interstate commerce be subject to material interference. Railway Express Agency v. People of State of New York, 336 U.S. 106, 111, 69 S.Ct. 463, 466, 93 L.Ed. 533; South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 187, 625, 58 S.Ct. 510, 514, 82 L.Ed. 734. No conflict with federal regulation is involved here. See Lehigh Valley R. Co. v. Board of Public Utility Com'rs, 278 U.S. 24, 35, 49 S.Ct. 69, 72, 73 L.Ed. 161. 16 When the appellants went on the streets in question, they assumed the burden of sharing on a fair and reasonable basis the costs of any changes for the reason of public safety and convenience made necessary by the growth of the communities. 17 'To engage in interstate commerce the railroad must get on to the land and to get on to it must comply with the conditios imposed by the State for the safety of its citizens.' Erie R. Co. v. Board of Public Utility Com'rs, supra, 254 U.S. at page 411, 41 S.Ct. at page 171. 18 The orders of the Commission are not arbitrary or unreasonable and do not deprive the appellants of their property without due process of law, nor do they interfere unreasonably with interstate commerce. 19 The judgments of the Supreme Court of California are 20 Affirmed. 21 The CHIEF JUSTICE took no part in the consideration or decision of these cases. 22 Petition for further consideration. 23 Denied. 24 THE CHIEF JUSTICE took no part in the consideration or decision of this application. 1 The final orders may be found at 51 Cal.P.U.C. 771 and 51 Cal.P.U.C. 788. 2 '§ 1202. Exclusive powers of commission. The commission has the exclusive power: '(a) To determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use, and protection of each crossing of one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public or publicly used road or highway by a railroad or street railroad, and of a street by a railroad or vice versa, subject to the provisions of Sections 1121 to 1127, inclusive, of the Streets and Highways Code so far as applicable. '(b) To alter, relocate, or abolish by physical closing any such crossing heretofore or hereafter established. '(c) To require, where in its judgment it would be practicable, a separation of grades at any such crossing heretofore or hereafter established, and to prescribe the terms upon which such separation shall be made and the proportions in which the expense of the construction, alteration, relocation, or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad corporations affected or between such corporations and the State, county, city, or other political subdivision affected.' Deering's Cal.Pub.U.C.A., 1951. 3 40 Adv.Cal. 54—55; 40 Adv.Cal. 472—473. 4 51 Cal.P.U.C. 771, 779. 5 Ibid. 6 51 Cal.P.U.C. 788, 795.
34
346 U.S. 328 74 S.Ct. 88 98 L.Ed. 5 VORISv.EIKEL et al. No. 20. Argued Oct. 14, 1953. Decided Nov. 9, 1953. Mr. Murray L. Schwartz, Washington, D.C., for petitioner. Mr. John R. Brown, Houston, Tex., for respondents. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 This case involves the proper application of the notice provisions of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. by a Deputy Commissioner to the claim of an employee admittedly subject to the provisions of the Act. Section 12 of the Act provides: 2 '(a) Notice of an injury or death in respect of which compensation is payable under this chapter shall be given within thirty days after the date of such injury or death (1) to the deputy commissioner in the compensation district in which such injury occurred and (2) to the employer. 3 '(b) Such notice shall be in writing, shall contain the name and address of the employee and a statement of the time, place, nature, and cause of the injury or death, and shall be signed by the employee or by some person on his behalf, or in case of death, by any person claiming to be entitled to compensation for such death or by a person on his behalf. 4 '(d) Failure to give such notice shall not bar any claim under this chapter (1) if the employer (or his agent in charge of the business in the place where the injury occurred) or the carrier had knowledge of the injury or death and the deputy commissioner determines that the employer or carrier has not been prejudiced by failure to give such notice, or (2) if the deputy commissioner excuses such failure on the ground that for some satisfactory reason such notice could not be given * * *.' 44 Stat. 1431, 33 U.S.C. § 912, 33 U.S.C.A. § 912. 5 The Deputy Commissioner found in favor of the claimant, and awarded compensation. The United States District Court for the Southern District of Texas reversed his decision and enjoined further payments, 101 F.Supp. 963. The Court of Appeals for the Fifth Circuit affirmed by a divided court, 200 F.2d 724. This Court granted certiorari to review the interpretation of the statute. 345 U.S. 955, 73 S.Ct. 937. 6 The facts as disclosed by the record and found by the Deputy Commissioner are as follows: 7 The claimant, Earl Porter, was a stevedore employed by the Southern Stevedoring and Contracting Company. On December 19, 1949, while he was working in the hold of the S.S. Southern States, the loading equipment struck an electric fixture which, in breaking, ignited some sulphur and created a flash fire. The men fled in terror from the hold, and, while claimant was on the ladder, he was struck by a beam and knocked to the floor, with resulting injuries to his back and shoulder. The Deputy Commissioner found that the injuries were permanent. No written notice was given to the employer until six months after the accident. 8 Several workmen on the stevedoring gang saw the claimant injured. Others, including Leslie Lovely, foreman of the gang on which claimant worked, saw him on the deck immediately after the injury, unable to walk. Some of claimant's fellow workers carried him to a nearby automobile. The walking foreman, Ernest Wisby, who supervised the work of both stevedoring gangs on the vessel, was immediately notified by the claimant of his injury, and it was Wisby who drove the claimant to his home. 9 The claimant testified that he asked Wisby to take him to a doctor, but that the latter told him he could not reach one until 7:00 a.m. This was at 4:15 a.m. Claimant testified that he crawled into the house instead of walking because of the pain he was suffering. Wisby did not return to take him to the doctor. Claimant further testified that later on the morning of the accident he sent his wife to the home of Wisby in order to have the latter arrange for a doctor but was told he was asleep, and that two or three days later he went to Wisby's house and demanded that he be taken to a doctor. Wisby admitted this, but denied that he ever agreed to take the claimant to a doctor. He testified that he told claimant that the timekeeper was the only one who had authority to send him to a doctor. Wisby testified that he reported the injury to the timekeeper on the day of the accident. 10 The record establishes that the usual method of reporting accidents on this job and similar jobs is for the injured employee to report to his immediate supervisor. The immediate supervisors of the stevedores are the gang and walking foremen. When there is a timekeeper on the job, the supervisor sends or takes the employee to the timekeeper who sends the employee to a doctor. Both the supervisor and the timekeeper are instructed to report the injury to the employer or the agent in charge. 11 Wisby was the man who hired the claimant, directed his work, and paid him his wages for the respondent. The only other person claimed by respondent to be in authority for it on the ship at the time of the accident was A. P. David, whose regular status was that of gearman. He testified that he was left in charge of the job when B. D. Harris, a partner in the stevedoring firm, left the ship that day to make a trip to Houston. There is nothing in the record to indicate, and there is evidence to the contrary, that the authority claimed for David as representative of the company was known to the foremen or workmen. David had no headquarters on the job; there was no notice given of his change in status from 'gearman' to agent in charge; and, during the loading operation at the time of the accident, he was in the galley talking and having coffee with the timekeeper. 12 It is under these circumstances that the respondent contends, and the courts below held, that the Deputy Commissioner could not find that the employer had the notice required by § 12(d) of the Act. 13 This conclusion was not justified. The flash fire was a matter of common knowledge and even terror on the ship. Many witnesses saw the claimant injured or on the deck unable to walk immediately thereafter. His gang foreman knew of the injury. The walking foreman, who hired him and paid his wages, not only knew of it, but had him carried to his car and drove him home, promising, according to claimant's testimony, to later take him to a doctor. This same foreman informed the timekeeper of the injury. Exactly what the timekeeper and Mr. David were doing throughout this exciting and dangerous period does not appear in the record, but certainly they were sufficiently close to be aware of the occurrence. 14 The respondents would have us hold that unless the claimant can demonstrate that the employer, or the person he selects to be in charge, even another workman selected without notice to the workmen or foremen, has actual personal knowledge of the injury, the requirements of § 12(d) are not satisfied. Such an interpretation would be indefensible. 15 The accepted practice on the job was for personal injuries to be reported by the injured party or his foreman to the timekeeper. It then became the duty of the latter to procure a doctor. When Wisby reported the injury to the timekeeper, the established practice of notice to the employer was substantially complied with. Both Wisby and the timekeeper were under a duty to report the injury to the employer or his agent in charge. The Deputy Commissioner found that the claimant received a crippling injury, that he was illiterate and without instruction or knowledge as to whom to report his injury, and that the practice on the job of reporting injuries for medical assistance as recognized by the employer was followed in his case, and that the failure to supply medical assistance was due to the negligence of the employer or his agents, and that the employer was not prejudiced by the failure to give written notice. These findings are supported by the evidence in the record. Under these circumstances, we hold that the Deputy Commissioner was justified in finding that the employer had notice of the injury within the meaning of § 12(d). The burden of any failure of these agents to report must fall on the employer, and not on a longshoreman who follows the routine the employer prescribes. Particularly is it true in this case where the claimant, who was totally illiterate and only worked as a stevedore for two days, suffered a painful and crippling injury that necessitated removing him from the job to his home. 16 This Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results. Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed. 366. The Deputy Commissioner is empowered to hear and determine all questions in respect of claims under the Act. 44 Stat. 1435, 33 U.S.C. § 919(a), 33 U.S.C.A. § 919(a). The federal district courts have power to enjoin awards only if they are not 'in accordance with law'. 44 Stat. 1436, 33 U.S.C. § 921(b); and see Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq. The findings of the Deputy Commissioner are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole. O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483. Otherwise, reversal must rest on an error of law, such as a misconstruction of the Act. Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931. The Deputy Commissioner properly construed the law, and his findings are supported by evidence. The Act was designed to provide compensation for the included workers, regardless of whether written notice was given, where the employer has knowledge of the injury, or the employee cannot give the required written notice. Because of our conclusion, it is not necessary to determine whether the claimant could have given written notice to the employer. 17 The District Court also held that it would have been required to refer the case back to the Deputy Commissioner for further findings on the question of the permanence of the injury and the determination of the compensation rate. These questions, however, are not before the Court. The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for such further proceedings as it deems necessary, not inconsistent with this opinion. 18 Reversed.
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346 U.S. 335 74 S.Ct. 98 98 L.Ed. 15 LOBER et al.v.UNITED STATES. No. 30. Argued Oct. 16, 1953. Decided Nov. 9, 1953. Mr. David Stock, New York City, for petitioners. Mr. Charles K. Rice, New York City, for respondent. Mr Justice BLACK delivered the opinion of the Court. 1 This is an action for an estate tax refund brought by the executors of the estate of Morris Lober. In 1924 he signed an instrument conveying to himself as trustee money and stocks for the benefit of his young son. In 1929 he executed two other instruments, one for the benefit a daughter, the other for a second son. The terms of these three instruments were the same. Lober was to handle the funds, invest and reinvest them as he deemed proper. He could accumulate and reinvest the income with the same freedom until his children reached twenty-one years of age. When twenty-one they were to be paid the accumulated income. Lober could hold the principal of each trust until the beneficiary reached twenty-five. In case he died his wife was to be trustee with the same broad powers Lober had conveyed to himself. The trusts were declared to be irrevocable, and as the case reaches us we may assume that the trust instruments gave Lober's children a 'vested interest' under state law, so that if they had died after creation of the trusts their interests would have passed to their estates. A crucial term of the trust instruments was that Lober could at any time he saw fit turn all or any part of the principal of the trusts over to his children. Thus he could at will reduce the principal or pay it all to the beneficiaries, thereby terminating any trusteeship over it. 2 Lober died in 1942. By that time the trust property was valued at more than $125,000. The Internal Revenue Commissioner treated this as Lober's property and included it in his gross estate. That inclusion brought this lawsuit. The Commissioner relied on § 811(d)(2) of the Internal Revenue Code, 26 U.S.C. § 811 (1946 ed.), 26 U.S.C.A. § 811. That section, so far as material here, required inclusion in a decedent's gross estate of the value of all property that the decedent had previously transferred by trust 'where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power * * * to alter, amend, or revoke * * *.' In Commissioner of Internal Revenue v. Holmes' Estate, 326 U.S. 480, 66 S.Ct. 257, 261, 90 L.Ed. 228, we held that power to terminate was the equivalent of power to 'alter, amend, or revoke' it, and we approved taxation of the Holmes estate on that basis. Relying on the Holmes case, the Court of Claims upheld inclusion of these trust properties in Lober's estate. 108 F.Supp. 731, 124 Ct.Cl. 44. This was done despite the assumption that the trust conveyances gave the Lober children an indefeasible 'vested interest' in the properties conveyed. The Fifth Circuit Court of Appeals had reached a contrary result where the circumstances were substantially the same, in Hays' Estate v. Commissioner of Internal Revenue, 5 Cir., 181 F.2d 169, 172—174. Because of this conflict, we granted certiorari. 345 U.S. 969, 73 S.Ct. 1111. 3 Petitioners stress a factual difference between this and the Holmes case. The Holmes trust instrument provided that if a beneficiary died before expiration of the trust his children succeeded to his interest, but if he died without children, his interest would pass to his brothers or their children. Thus the trustee had power to eliminate a contingency that might have prevented passage of a beneficiary's interest to his heirs. Here we assume that upon death of the Lober beneficiaries their part in the trust estate would, under New York law, pass to their heirs. But we cannot agree that this difference should change the Holmes result. 4 We pointed out in the Holmes case that § 811(d)(2) was more concerned with 'present economic benefit' than with 'technical vesting of title or estates.' And the Lober beneficiaries, like the Holmes beneficiaries, were granted no 'present right to immediate enjoyment of either income or principal.' The trust instrument here gave none of Lober's children full 'enjoyment' of the trust property, whether it 'bested' in them or not. To get this full enjoyment they had to wait until they reached the age of twenty-five unless their father sooner gave them the money and stocks by terminating the trust under the power of change he kept to the very date of his death. This father could have given property to his children without reserving in himself any power to change the terms as to the date his gift would be wholly effective, but he did not. What we said in the Holmes case fits this situation too: 'A donor who keeps so strong a hold over the actual and immediate enjoyment of what he puts beyond his own power to retake has not divested himself of that degree of control which § 811(d)(2) requires in order to avoid the tax.' Commissioner of Internal Revenue v. Holmes, supra, 326 U.S. at page 487, 66 S.Ct. at page 260. 5 Affirmed. 6 Mr. Justice DOUGLAS and Mr. Justice JACKSON dissent.
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346 U.S. 356 74 S.Ct. 78 98 L.Ed. 64 TOOLSONv.NEW YORK YANKEES, Inc. et al. KOWALSKI v. CHANDLER et al. CORBETT et al. v. CHANDLER et al. Nos. 18, 23 and 25. Argued Oct. 13, 14, 1953. Decided Nov. 9, 1953. Rehearing Denied Dec. 14, 1953. See 346 U.S. 917, 74 S.Ct. 271. No. 18: Mr. Howard L. Parke, Baltimore, Md., for petitioner Toolson. Mr. Norman S. Sterry, Los Angeles, Cal., for respondents New York Yankees and others. No. 23: Mr. Frederic A. Johnson, New York City, for petitioner Kowalski. Mr. Raymond T. Jackson, Cleveland, Ohio, for respondents Chandler and others. No. 25: Mr. Seymour Martinson, New York City, for petitioner Corbett and another. Mr. Raymond T. Jackson, Cleveland, Ohio, for respondents Chandler and others. PER CURIAM. 1 In Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 1922, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, this Court held that the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws. Congress has had the ruling under consideration but has not seen fit to bring such business under these laws by legislation having prospective effect. The business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation. Without re-examination of the underlying issues, the judgments below are affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws. 2 Affirmed. 3 Mr. Justice BURTON, with whom Mr. Justice REED concurs, dissenting. 4 Whatever may have been the situation when the Federal Baseball Club case1 was decided in 1922, I am not able to join today's decision which, in effect, announces that organized baseball, in 1953, still is not engaged in interstate trade or commerce. In the light of organized baseball's well-known and widely distributed capital investments used in conducting competitions between teams constantly traveling between states, its receipts and expenditures of large sums transmitted between states, its numerous purchases of materials in interstate commerce, the attendance at its local exhibitions of large audiences often traveling across state lines, its radio and television activities which expand its audiences beyond state lines, its sponsorship of interstate advertising, and its highly organized 'farm system' of minor league baseball clubs, coupled with restrictive contracts and understandings between individuals and among clubs or leagues playing for profit throughout the United States, and even in Canada, Mexico and Cuba, it is a contradiction in terms to say that the defendants in the cases before us are not now engaged in interstate trade or commerce as those terms are used in the Constitution of the United States and in the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note.2 5 In 1952 the Subcommittee on Study of Monopoly Power, of the House of Representatives Committee on the Judiciary, after extended hearings, issued a report dealing with organized baseball in relation to the Sherman Act. In that report it said: 6 "Organized baseball' is a combination of approximately 380 separate baseball clubs, operating in 42 different States, the District of Columbia, Canada, Cuba, and Mexico * * *. 7 'Inherently, professional baseball is intercity, intersectional, and interstate. At the beginning of the 1951 season, the clubs within organized baseball were divided among 52 different leagues. Each league is an unincorporated association of from 6 to 10 clubs which play championship baseball games among themselves according to a prearranged schedule. Such a league organization is essential for the successful operation of baseball as a business. 8 'Of the 52 leagues associated within organized baseball in 1951, 39 were interstate in nature.'3 9 In the Federal Baseball Club case the Court did not state that even if the activities of organized baseball amounted to interstate trade or commerce those activities were exempt from the Sherman Act. The Court acted on its determination that the activities before it did not amount to interstate commerce. The Court of Appeals for the District of Columbia, in that case, in 1921, described a major league baseball game as 'local in its beginning and in its end.'4 This Court stated that 'The business is giving exhibitions of baseball, which are purely state affairs', and the transportation of players and equipment between states 'is a mere incident * * *.'5 The main thrust of the argument of counsel for organized baseball, both in the Court of Appeals and in this Court, was in support of that proposition.6 Although counsel did argue that the activities of organized baseball, even if amounting to interstate commerce, did not violate the Sherman Act,7 the Court significantly refrained from expressing its opinion on that issue. 10 That the Court realized that the then incidental interstate features of organized baseball might rise to a magnitude that would compel recognition of them independently is indicated by the statement made in 1923 by Mr. Justice Holmes, the writer of the Court's opinion in the Federal Baseball Club case. In 1923, in considering a bill in equity alleging a violation of the Sherman Act by parties presenting local exhibitions on an interstate vaudeville circuit, the Court held that the bill should be considered on its merits and, in writing for the Court, Mr. Justice Holmes said 'The bill was brought before the decision of the Baseball Club Case, and it may be that what in general is incidental, in some instances may rise to a magnitude that requires it to be considered independently.'8 11 The 1952 report of the Congressional Subcommittee previously mentioned also said: 12 'Under judicial interpretations of this constitutional provision (the commerce clause), the Congress has power to investigate, and pass legislation dealing with professional baseball, or more particularly 'organized baseball,' if that business is, or affects, interstate commerce. 13 'After full review of all of the foregoing facts and with due consideration of modern judicial interpretation of the scope of the commerce clause, it is the studied judgment of the Subcommittee on the Study of Monopoly Power that the Congress has jurisdiction to investigate and legislate on the subject of professional baseball.' H.R.Rep. No. 2002, 82d Cong., 2d Sess. 4, 7, and see 111—139.9 14 In cases Nos. 18 and 23 the plaintiffs here allege that they are professional baseball players who have been damaged by enforcement of the standard 'reserve clause' in their contracts pursuant to nationwide agreements among the defendants.10 In effect they charge that in violation of the Sherman Act, organized baseball, through its illegal monopoly and unreasonable restraints of trade, exploits the players who attract the profits for the benefit of the clubs and leagues. Similarly, in No. 25, the plaintiffs allege that because of illegal and inequitable agreements of interstate scope between organized baseball and the Mexican League binding each to respect the other's 'reserve clauses' they have lost the services of and contract rights to certain basebabll players. The plaintiffs also allege that the defendants have entered into a combination, conspiracy and monopoly or an attempt to monopolize professional baseball in the United States to the substantial damage of the plaintiffs. 15 Conceding the major asset which baseball is to our Nation, the high place it enjoys in the hearts of our people and the possible justification of special treatment for organized sports which are engaged in interstate trade or commerce, the authorization of such treatment is a matter within the discretion of Congress.11 Congress, however, has enacted no express exemption of organized baseball from the Sherman Act, and no court has demonstrated the existence of an implied exemption from that Act of any sport that is so highly organized as to amount to an interstate monopoly or which restrains interstate trade or commerce. In the absence of such an exemption, the present popularity of organized baseball increases, rather than diminishes, the importance of its compliance with standards of reasonableness comparable with those now required by law of interstate trade or commerce. It is interstate trade or commerce and, as such, it is subject to the Sherman Act until exempted. Accordingly, I would reverse the judgments in the instant cases and remand the causes to the respective District Courts for a consideration of the merits of the alleged violations of the Sherman Act. 1 Federal Baseball Club v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898. 2 Compare Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357; and Hooper v. People of State of California, 155 U.S. 648, 15 S.Ct. 207, 39 L.Ed. 297; with United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440; and Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162. See also, Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S.Ct. 872; United States v. National Ass'n of Real Estate Boards, 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007; United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160; American Medical Ass'n v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434. 3 H.R.Rep. No. 2002, 82d Cng., 2d Sess. 4, 5. 'The primary sources of revenue for baseball clubs are admissions, radio and television, and concessions. The following table indicates the combined revenue of the 16 major-league clubs from these sources for the years 1929, 1939, and 1950. "Major league revenue "(In thousands of dollars) "Source of revenue 192911939 1950 Home games. 6,559.1. 6,766.6 18,334.8 Road games. 2,221.4. 2,320.2 4,517.8 Exhibition games. 422.6. 515.7 911.5 Radio and television. 0. 884.5 3,365.5 Concessions (net). 582.8. 850.3 2,936.3 Other.....____733.4.___776.0 _1,969.6 Gross receipts. 10,519.5 12,113.3 32,035.5 1 "Data unavailable for 2 clubs: Chicago, American League; and Pittsburgh, National League. 'The fastest-growing source of revenue for major league clubs is radio and television. Receipts from these media of interstate commerce were nonexistent in 1929. In 1939, 7.3 percent of the clubs' revenue came from this source; and in 1950, this share rose to 10.5 percent. 'Portrayed in absolute terms, the growing importance of radio and television becomes even more pronounced. Receipts rose from nothing in 1929 to $884,500 in 1939 and $3,365,500 in 1950. Reported income from primary radio and television contracts for 1951 indicate that this sharp increase is continuing. * * * To this must be added $110,000 for the sale of radio and television rights to the 1951 all-star game and $1,075,000 for the sale of similar rights to the 1951 world series.' Id., at 5—6. 4 National League of Professional Baseball Clubs v. Federal Baseball Club, 50 App.D.C. 165, 169, 269 F. 681, 685. 5 259 U.S., at page 208, 209, 42 S.Ct. at page 466. 6 See brief for appellants in the Court of Appeals, pp. 45 67; brief for defendants in error in this Court, pp. 45—66. 7 See brief for appellants in Court of Appeals, pp. 68—72; brief for defendants in error in this Court, pp. 66—72. 8 Hart v. ,B. F. Keith Vaudeville Exchange, 262 U.S. 271, 274, 43 S.Ct. 540, 541, 67 L.Ed. 977, and see North American Co. v. Securities and Exchange Comm., 327 U.S. 686, 694, 66 S.Ct. 785, 791, 90 L.Ed. 945. 9 In opposing approval of four exclusionary bills then pending, the Subcommittee did not take the stand that organized baseball and other comparable sports, although constituting interstate trade or commerce, already are exempt from the broad coverage of the Sherman Act. On the contrary, it said: 'Four bills have been introduced in the Congress, three in the House, one in the Senate, intending to give baseball and all other professional sports a complete and unlimited immunity from the antitrust laws. The requested exemption would extend to all professional sports enterprises and to all acts in the conduct of such enterprises. The law would no longer require competition in any facet of business activity of any sport enterprise. Thus the sale of radio and television rights, the management of stadia, the purchase and sale of advertising, the concession industry, and many other business activities, as well as the aspects of baseball which are solely related to the promotion of competition on the playing field, would be immune and untouchable. Such a broad exemption could not be granted without substantially repealing the antitrust laws.' Id., at 230. 10 'The reserve clause is popularly believed to be some provision in the player contract which gives to the club in organized baseball which first signs a player a continuing and exclusive right to his services. Commissioner Frick testified that this popular understanding was essentially correct. He pointed out, however, that the reserve clause is not merely a provision in the contract, but also incorporates a reticulated system of rules and regulations which enable, indeed require, the entire baseball organization to respect and enforce each club's exclusive and continuous right to the services of its players.' H.R.Rep. No. 2002, 82d Cong., 2d Sess. 111. See also, Section VII, The Reserve Clause, Id., at 111—139, and Gardella v. Chandler, 2 Cir., 172 F.2d 402. In No. 18 the following specific allegations appear and those in No. 23 are comparable: 'XI. 'That the Defendants, and each of them, have entered into or agreed to be bound by a contract in the restraint of Interstate Commerce; that said contract is designated as the Major-Minor League Agreement, dated December 6, 1946, and provides in effect that: '1. All players' contracts in the Major Leagues shall be of one form and that all players' contracts in the Minor Leagues shall be of one form. '2. That all players' contracts in any league must provide that the Club or any assignee thereof shall have the option to renew the player's contract each year and that the player shall not play for any other club but the club with which he has a contract or the assignee thereof. '3. That each club shall, on or before a certain date each year, designate a reserve list of active and eligible players which it desires to reserve for the ensuing year. That no player on such a reserve list may thereafter be eligible to play for any other club until his contract has been assigned or until he has been released. '4. That the player shall be bound by any assignment of his contract by the club, and that his remuneration shall be the same as that usually paid by the assignee club to other players of like ability. '5. That there shall be no negotiations between a player and any other club from the one which he is under contract or reservation respecting employment either present or prospective unless the Club with which the player is connected shall have in writing expressly authorized such negotiations prior to their commencement. '6. That in the case of Major League players, the Commissioner of Baseball and in the case of Minor League players, the President of the National Association, may determine that the best interests of the game require a player to be declared ineligible and, after such declaration, no club shall be permitted to employ him unless be shall have been reinstated from the ineligible list. '7. That an ineligible player whose name is omitted from a reserve list shall not thereby be rendered eligible for service unless and until he has applied for and been granted reinstatement. '8. That any player who violates his contract or reservation, or who participates in a game with or against a club containing or controlled by ineligible players or a player under indictment for conduct detrimental to the good repute of professional baseball, shall be considered an ineligible player and placed on the ineligible list. '9. That an ineligible player must be reinstated before he may be released from his contract. '10. That clubs shall not tender contracts to ineligible players until they are reinstated. '11. That no club may release unconditionally an ineligible player unless such player is first reinstated from the ineligible list to the active list. 'XIII. 'That by reason of Plaintiff being placed and held on said ineligible list as hereinabove set out and the making of the aforementioned contract by the Defendants, the Defendants, and each of them, have refused since the 25th day of May, 1950, and still do refuse to allow Plaintiff to play professional baseball, and that Plaintiff has thereby been deprived of his means of livelihood, all to the Plaintiff's damages in the sum of $125,000.00.' The complaint also contains a separate cause of action alleging that the defendants, by virtue of their agreements, have entered into a combination and conspiracy in the restraint of trade or commerce among the several states, and another cause of action alleging that the defendants have, by their agreements, combined to monopolize professional baseball in the United States. 11 E.g., Congress has expressly exempted certain specific activities from the Sherman Act, as in § 6 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 17, 15 U.S.C.A. § 17 (labor organizations), in the Capper-Volstead Act, 42 Stat. 388—389, 7 U.S.C. §§ 291, 292, 7 U.S.C.A. §§ 291, 292 (farm cooperatives), and in the McCarran-Ferguson Act, 59 Stat. 34, 61 Stat. 448, 15 U.S.C. (Supp. V) § 1013, 15 U.S.C.A. § 1013 (insurance). And see Apex Hosiery Co. v. Leader, 310 U.S. 469, 501, 512, 60 S.Ct. 982, 996, 1002, 84 L.Ed. 1311.
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346 U.S. 366 74 S.Ct. 100 98 L.Ed. 77 AVONDALE MARINE WAYS, Inc., Petitionerv.Joseph H. HENDERSON, Deputy Commissioner, et al. No. 44. Supreme Court of the United States Argued Oct. 20, 1953. November 9, 1953 Mr. Frank A. Bull, New York City, for petitioner. Mr. Melvin Richter, Washington, D.C., for respondents. PER CURIAM. 1 The judgment is affirmed. Davis v. Department of Labor and Industries of Washington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246; Kaiser Co. v. Baskin, 340 U.S. 886, 71 S.Ct. 208, 95 L.Ed. 643; Baskin v. Industrial Accident Commission, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523; Bethlehem Steel Co. v. Moore, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417. 2 Mr. Justice DOUGLAS, concurring. 3 I do not think this case belongs in the 'twilight zone' of Davis v. Department of Labor and Industries of Washington, 317 U.S. 249, 256, 63 S.Ct. 225, 229, 87 L.Ed. 246. Recovery was allowed under the Longshoremen's and Harbor Workers' Compensation Act for a death which occurred on a barge drawn up for repairs on a marine railway. Norton v. Vesta Coal Co., 3 Cir., 63 F.2d 165 was such a case and Judge Woolley dissented from a holding that a marine railway was not included in the statutory language, 'any dry dock'. 4 Mr. Justice REED took no part in the consideration or decision of this case. 5 Mr. Justice BURTON concurs in the affirmance of the judgment of the Court of Appeals but does so on the ground relied upon by that court and by the District Court. This was that the Deputy Commissioner, in making the award, acted within the terms of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1426, 33 U.S.C. § 903(a), 33 U.S.C.A. § 903(a), in that the decedent, at the time of receiving his fatal injury, was engaged in cleaning a tank of a barge located on the ways of a marine railway, by means of which the barge had been hauled out of the Mississippi River for repairs. They held that his death resulted 'from an injury occurring upon the navigable waters of the United States (including any dry dock)' as those terms are used in such Act. Avondale Marine Ways v. Henderson, 5 Cir., 201 F.2d 437, following Maryland Casualty Co. v. Lawson, 5 Cir., 101 F.2d 732, and Continental Casualty Co. v. Lawson, 5 Cir., 64 F.2d 802. 6 As Judge Woolley explained, there are three kinds of dry docks. (1) A floating dry dock, as its name makes clear, floats on the water, the vessel resting on the bottom of the dry dock after the water has been removed. (2) A graven dry dock is dug into the land. The vessel floats in but rests on land once the water has been pumped out. (3) Finally there is the marine railway, on which the vessel is drawn out of the water, instead of the water being drawn away from the vessel. A ship is no more and no less on land when it rests in a graven dry dock than when it rests on a marine railway. The three types of dry docks are not different in kind; functionally they are the same. And I see no basis for concluding that Congress treated one differently from the others for the purposes of this Act.
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346 U.S. 368 74 S.Ct. 109 98 L.Ed. 80 STATE OF ARKANSASv.STATE OF TEXAS et al. No. ____, Original. Argued Oct. 21, 1953. Decided Nov. 16, 1953. Messrs. Thomas J. Gentry, Little Rock, Ark., E. J. Ball, for plaintiff. Messrs. Marietta McGregor Creel, William H. Holloway, Austin, Tex., for defendants. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This is a motion by Arkansas to file a complaint against Texas and invoke our original jurisdiction granted by Art. III, § 2, of the Constitution. 2 The complaint alleges that the University of Arkansas, acting through its Board of Trustees, and the William Buchanan Foundation, a corporation organized under the laws of Texas, entered into a contract whereby the Foundation agreed to contribute a sum of $500,000 to the construction of a one-hundred bed pediatric floor in a new hospital in the Arkansas State Medical Center. The allegations are that, though the University of Arkansas and the Foundation are ready, willing, and able to perform, the State of Texas, acting through her Attorney General, has filed suit in the texas courts to enjoin the Foundation from performing the contract on the grounds that under Texas law the trust funds of the Foundation must be expended for the benefit of Texas residents. The complaint further alleges that the University of Arkansas is an official instrumentality of Arkansas, that in reliance on the agreement with the Foundation it let contracts for the construction of the hospital, proceeded with construction to the sixth floor, and is without funds to proceed further unless Texas is enjoined from interference with the contract. 3 We issued a rule to show cause why leave to file the complaint should not be granted, 345 U.S. 954, 73 S.Ct. 935. Texas has made return to the rule and the case has been argued. 4 Texas first argues that the William Buchanan Foundation is an indispensable party to the suit. We do not agree. The theory of the complaint is that Texas is interfering without legal justification with Arkansas' contract with a third person. At least since Lumley v. Gye, 2 El. & Bl. 216, 118, Eng.Rep. 749 (Q.B.1853), a cause of action based on that tortious conduct has been recognized. See Angle v. Chicago, St. P., M. & O.R. Co., 151 U.S. 1, 13—15, 14 S.Ct. 240, 244—245, 38 L.Ed. 55; Bitterman v. Louisville & N.R. Co., 207 U.S. 205, 222—223, 28 S.Ct. 91, 97, 207 L.Ed. 171. However appropriate it might be to join the Foundation as a defendant in the case, see State of Texas v. State of Florida, 306 U.S. 398, 405, 59 S.Ct. 563, 567, 83 L.Ed. 817, the controversy is between Arkansas and Texas—the issue being whether Texas is interfering unlawfully with Arkansas' contract. 5 The contention that the controversy is between two Stats is challenged on the ground that the injured party is the University of Arkansas, which does not stand in the shoes of the State. Arkansas must, of course, represent an interest of her own and not merely that of her citizens of corporations. State of Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 58 S.Ct. 954, 82 L.Ed. 1416. But as we read Arkansas law the University of Arkansas is an official state instrumentality; and we conclude that for purposes of our original jurisdiction any injury under the contract to the University is an injury to Arkansas. 6 The University, which was created by the Arkansas legislature,1 is governed by a Board of Trustees appointed by the Governor with consent of the Senate.2 The Board, to be sure, is 'a body politic and corporate'3 with power to issue bonds which do not pledge the credit of the State.4 But the Board must report all of its expenditures to the legislature,5 and the State owns all the property used by the University.6 The Board of Trustees is denominated 'a public agency' of the State,7 the University is referred to as 'an instrument of the state in the performance of a governmental work',8 and a suit against the University is a suit against the State.9 7 In determining whether the interest being litigated is an appropriate one for the exercise of our original jurisdiction we of course look behind and beyond the legal form in which the claim of the State is pressed. We determine whether in substance the claim is that of the State, whether the State is indeed the real party in interest. State of Oklahoma v. Cook, supra, 304 U.S. at pages 392—396, 58 S.Ct. at pages 956—958, 82 L.Ed. 1416. Arkansas is in our view the real party in interest. The University of Arkansas is her agency in the educational field—a branch or department of the State. 8 The central question which the case tenders is whether the william Buchanan Foundation has authority to spend its funds for furtherance of this Arkansas project. That is necessarily a question of Texas law, for the Foundation gets its existence and its powers from Texas. Texas courts speak with authority on those issues. Were we to undertake to resolve the questions we might find ourselves in conflict with the courts that have the final say. Moreover litigation is now pending in the Texas courts which will authoritatively determine what the Texas law is. We therefore follow the course we have taken in analogous situations, cf. Thompson v. Magnolia Co., 309 U.S. 478, 483, 60 S.Ct. 628, 630, 84 L.Ed. 876; Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789, and continue the present motion until the litigation in the Texas courts has been concluded. If that litigation resolves the whole controversy, leaving no federal questions, there will be no occasion for us to proceed further. It is so ordered. 9 Motion continued. 10 Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER, Mr. Justice CLARK and Mr. Justice MINTON join, dissenting. 11 We would deny this motion outright, because we think no case is presented appropriate for original action here. 12 In 1923, William Buchanan, a citizen and resident of Texas, executed within that State a conveyance of personal property to trustees. They, in Texas, duly accepted the trust. The trust instrument recited the purpose to create and endow an incorporated charitable enterprise known as 'The William Buchanan Foundation' in the City of Texarkana, Texas. Such a corporation was created by the State of Texas for the particular purpose of carrying out the provisions of the trust deed made by Buchanan. 13 It is needless to recite these purposes beyond saying that they are broadly stated, and some clauses leave the broadest discretion to the Foundation. Another clause contemplates that the trust 'shall be administered in Bowie County, Texas, but for the benefit not only of the citizens or residents of said county, but also for the benefit of the citizens or residents of adjoining counties, as well as for the benefit of such other persons as in the judgment of the Trustees should receive the benefits of the activities or institutions established hereunder.' That this instrument is open in good faith to different interpretations seems apparent. 14 The trustees have made an agreement to expend a large sum for a charity hospital at the University of Arkansas, a state institution. The validity of that contract is questioned in the courts of Texas by the Attorney General thereof, whose duties include some supervision of the administration of charitable trusts. 15 If under these circumstances the courts of Texas cannot finally decide the validity and interpretation of its own charter and trust instrument and its corporation's power to contract, then there is little left of the original conception of state power. This Court seems to agree that some vestige, at least, of such power remains. 16 If a controversy between two states concerns the construction of a compact, Dyer v. Sims, 341 U.S. 22, 71 S.Ct. 557, 95 L.Ed. 713, or presents 'a question of 'federal common law' upon which neither the statutes nor the decisions of either State can be conclusive', Hinderlider v. La Plata River Co., 304 U.S. 92, 110, 58 S.Ct. 803, 810, 811, 82 L.Ed. 1202, this Court must, of course, determine their rights inter sese. 17 Local questions may be intertwined with these ultimate federal rights, and if there are sufficient grounds for delaying final action we may wait in order to 'have the advantage of the views of the state court'. See Com. of Kentucky v. State of Indiana, 281 U.S. 163, 177, 50 S.Ct. 275, 74 L.Ed. 784. 18 But where, as here, we are concerned with a question of Texas law in which the courts of that State necessarily 'have the final say' the only basis for our holding the suit is to ride herd on the Texas court, on the assumption that it may deny Arkansas some federal right. We ought not to entertain such a possibility in the administration of justice of one state against a sister state. Of course Arkansas will get justice in Texas, just as Texas would get justice in Arkansas. 19 If Texas courts decide that the contract is valid, Arkansas has no grievance. If Texas decides the other way, what more does this Court plan to do? What is the meaning of holding this case on the docket? We think the Texas courts should be left to decide their state law questions without the threat implicit in keeping this case alive. Exertion of a state's power to determine whether a contract of its corporation is ultra vires cannot be made a tortious interference with the rights of any party to the contract. Since we think the contention is frivolous, we would deny the motion and have done with the business. 1 See Ark.Acts 1871, No. 44; Ark.Stat. 1947, § 80—2801 Anno. 2 Ark.Stat.1947, § 80—2802. 3 Ark.Stat.1947, § 80—2804. 4 Jacobs v. Sharp, 211 Ark. 865, 202 S.W.2d 964. 5 Ark.Stat.1947, § 80—2817. 6 Id., §§ 80—2849 ff., 80—2905, 80—3311. 7 Jacobs v. Sharp, 211 Ark. at page 866, 202 S.W.2d 964. 8 Vincenheller v. Reagan, 69 Ark. 460, 474, 64 S.W. 278, 284. And see Gipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595. 9 See Allen Engineering Co. v. Kays, 106 Ark. 174, 152 S.W. 992.
89
346 U.S. 374 74 S.Ct. 113 98 L.Ed. 92 UNITED STATESv.DEBROW. UNITED STATES v. WILKINSON. UNITED STATES v. BRASHIER. UNITED STATES v. BOGERS. UNITED STATES v. JACKSON. Nos. 51 to 55. Argued Oct. 20, 1953. Decided Nov. 16, 1953. Mr. John F. Davis, Washington, D.C., for petitioner. Mr.Ben F. Cameron, Jackson, Miss., W. S. Henley, Jackson, Miss., R. W. Thompson, Jr., Gulfport, Miss., Albert S. Johnston, Jr., Biloxi, Miss., for respondents. Mr. Justice MINTON delivered the opinion of the Court. 1 The respondents here, defendants below, were charged by separate indictments with the crime of perjury, as defined in 18 U.S.C. § 1621, 18 U.S.C.A. § 1621.1 Each indictment read in material part as follows: 2 '(T)he defendant herein, having duly taken an oath before a competent tribunal, to wit: a subcommittee of the Senate Committee on Expenditures in the Executive Departments known as the Subcommittee on Investigations, a duly created and authorized subcommittee of the United States Senate conducting official hearings in the Southern District of Mississippi, and inquiring in a matter then and there pending before the said subcommittee in which a law of the United States authorizes that an oath be administered, that he would testify truly, did unlawfully, knowingly and wilfully, and contrary to said oath, state a material matter which he did not believe to be true. * * *' 3 The defendants filed motions to dismiss, which were sustained on the ground that the indictments did not allege the name of the person who administered the oath nor his authority to do so.2 The Court of Appeals affirmed, one judge dissenting, 203 F.2d 699, and we granted certiorari, 345 U.S. 991, 73 S.Ct. 1134, because of the importance of the question in the administration of federal criminal law. 4 An indictment is required to set forth the elements of the offense sought to be charged. 5 'The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, (435), 480, 40 L.Ed. 606.' Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861. 6 The Federal Rules of Criminal Procedure, 18 U.S.C.A., were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure. Rule 2, F.R.Crim.Proc. Rule 7(c) provides in pertinent part as follows: 7 'The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain * * * any other matter not necessary to such statement. * * *' 8 The essential elements of the crime of perjury as defined in 18 U.S.C. § 1621, 18 U.S.C.A. § 1621, are (1) an oath authorized by law of the United States, (2) taken before a competent tribunal, officer or person, and (3) a false statement wilfully made as to facts material to the hearing. The indictments allege that the subcommittee of the Senate was a competent tribunal, pursuing matters properly before it, that in such proceeding it was authorized by a law of the United States to administer oaths, and that each defendant duly took an oath before such competent tribunal and wilfully testified falsely as to material facts. 9 The oath administered must be authorized by a law of the United States. This requirement is met by the allegations in the indictments that the defendants had 'duly taken an oath.' 'Duly taken' means an oath taken according to a law which authorizes such oath. See Robertson v. Perkins, 129 U.S. 233, 236, 9 S.Ct. 279, 280, 32 L.Ed. 686. The name of the person who administered the oath is not an essential element of the crime of perjury; the identity of such person goes only to the proof of whether the defendants were duly sworn. Therefore, all the essential elements of the offense of perjury were alleged. 10 The source of the requirement that an indictment for perjury must aver the name and authority of the person who administered the oath is to be found in R.S. § 5396, 18 U.S.C. (1940 ed.) §§ 558. It may be worthy of note that this provision was expressly repealed by Congress in 1948, 62 Stat. 862, in the revision and recodification of Title 18. The House Committee on Revision of the Laws had the assistance of two special consultants who were members of the Advisory Committee on the Federal Rules of Criminal Procedure and who 'rendered invaluable service in the technical task of singling out for repeal or revision the statutory provisions made obsolete by the new Federal Rules of Criminal Procedure.' H.R.Rep. No. 304, 80th Cong., 1st Sess., p. 4. In the tabulation of laws omitted and repealed by the revision, it is stated that R.S. § 5396 was repealed because 'Covered by rule 7 of the Federal Rules of Criminal Procedure.' Id., at A214. 11 The charges of the indictments followed substantially the wording of the statute, which embodies all the elements of the crime, and such charges clearly informed the defendants of that with which they were accused, so as to enable them to prepare their defense and to plead the judgment in bar of any further prosecutions for the same offense. It is inconceivable to us how the defendants could possibly be misled as to the offense with which they stood charged. The sufficiency of the indictment is not a question of whether it could have been more definite and certain. If the defendants wanted more definite information as to the name of the person who administered the oath to them, they could have obtained it by requesting a bill of particulars. Rule 7(f), F.R.Crim.Proc. 12 The judictments were sufficient, and the dismissal thereof was error. The judgments are reversed. 13 Reversed. 14 Mr. Justice REED took no part in the consideration or decision of these cases. 1 'Perjury generally 'Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both.' 2 United States v. Debrow, U.S.D.C.S.D.Miss., Feb. 11, 1952 (unreported).
01
346 U.S. 389 74 S.Ct. 152 98 L.Ed. 132 DICKINSONv.UNITED STATES. No. 57. Argued Nov. 12, 13, 1953. Decided Nov. 30, 1953. Mr. Hayden C. Covington, Brooklyn, N.Y., for petitioner. Mr. Robert W. Ginnane, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 The principal and decisive issue before us is whether there was a basis in fact for denying Dickinson's claim to a ministerial exemption under § 6(g) of the Universal Military Training and Service Act, 62 Stat. 611, 50 U.S.C.Appendix, § 456(g), 50 U.S.C.A.Appendix, § 456(g).1 After the selective service authorities denied his claim, Dickinson refused to submit to induction in defiance of his local board's induction order. For this refusal he was convicted, in the United States District Court for the Northern District of California,2 of violating § 12(a)3 of the Act. The Court of Appeals for the Ninth Circuit affirmed the conviction. 203 F.2d 336. We granted certiorari. 345 U.S. 991, 73 S.Ct. 1136. 2 Section 6(g) is the source of the ministerial exemption. It provides, in pertinent part, that 'Regular or duly ordained ministers of religion, as defined in this title, * * * shall be exempt from training and service (but not from registration) under this title.' Section 16(g) embodies Congress' definition of a 'regular or duly ordained minister of religion'. 3 '(1) The term 'duly ordained minister of religion' means a person who has been ordained, in accordance with the ceremonial, ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization. 4 '(2) The term 'regular minister of religion' means one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister. 5 '(3) The term 'regular or duly ordained minister of religion' does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his church, sect, or organization.' Registrants who satisfy this definition are entitled to be classified IV-D. 32 C.F.R. § 1622.43.4 6 Dickinson, a Jehovah's Witness, originally claimed IV—D in 1948, shortly after he registered under the Act. At that time he stated, in his classification questionnaire, that he was a 'regular' but not an ordained minister, and was working 40 hours a week as a radio repairman. From other documents submitted to the board it appeared that he devoted an uncertain number of hours a week leading two Bible study groups and 'several hours each week' preaching to the public. On these facts he was classified I—A in July 1950. The validity of this classification is not at issue. 7 What is at issue is the decision of Dickinson's local board to continue him in I—A in September 1950 after he requested reclassification based on changed conditions in his vocation occurring subsequent to the filing of his questionnaire in 1948. Through his sworn testimony at a personal appearance before the board and subsequent letters to the selective service authorities, and through the affidavit of one C. David Easter, a 'supervisor' for the Watchtower Bible and Tract Society in the San Francisco area, supplemented by three letters from the Society itself, Dickinson established the following uncontradicted facts. 8 In the Spring of 1949 Dickinson voluntarily left his 40-hour-a-week job as a radio repairman and was baptized, the mark of ordination to Jehovah's Witnesses. In August 1949 he was enrolled by national headquarters of the Watchtower Bible and Tract Society and began his work as a full-time 'pioneer' minister, devoting 150 hours each month to religious efforts. This shift in Dickinson's activities occurred after February 1949 when selection under the Act was at a standstill, regular inductions having been halted.5 As of January 1950 Dickinson changed his residence in order to assume the role of 'Company Servant' or presiding minister of the Coalinga, California, 'Company,' which encompassed a 5,400-square-mile area. At that time he dedicated approximately 100 hours each month to actual pioneer missionary work—delivering public sermons, door-to-door preaching, conducting home Bible studies. In the remaining 50 hours devoted to religious activities each month, Dickinson studied, planned sermons and discourses, and wrote letters connected with his work. A substantial portion of this time was spent conducting three to four meetings each week of the 'Company' or congregation at a public hall in Coalinga. Dickinson arranged for and presided over these meetings, usually delivering discourses at them. He also instructed prospective ministers in the proper delivery of sermons at the 'Company's' Theocratic Ministry School. Dickinson received no salary for his missionary or company servant work. He lived on $35 a month earned by a weekly average of five hours of radio repair work. This modest income, a low $15—17.50 a month rental for an apartment, self-performance of household tasks, and invitations to various private homes enabled Dickinson to subsist. 9 Despite this uncontroverted evidence of marked change in Dickinson's activities the local board continued him in I—A. This ruling was affirmed by the state and national appeal boards, and he was ordered to report for induction on July 16, 1951. Dickinson reported to the induction center but refused to submit to induction. His indictment and conviction followed. 10 At the outset it is important to underline an elemental feature of this case. The Universal Military Training and Service Act does not permit direct judicial review of selective service classification orders. Rather the Act provides, as did the 1917 and 1940 conscription Acts before it,6 that classification orders by selective service authorities shall be 'final.' However, in Estep v. United States, 1946, 327 U.S. 114, at pages 122—123, 66 S.Ct. 423, at page 427, 90 L.Ed. 567, a case arising under the 1940 Act, this Court said: 'The provision making the decisions of the local boards 'final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant.' 11 The ministerial exemption, as was pointed out in the Senate Report accompanying the 1948 Act, 'is a narrow one, intended for the leaders of the various religious faiths and not for the members generally.' S.Rep. No. 1268, 80th Cong., 2d Sess. 13. Certainly all members of a religious organization or sect are not entitled to the exemption by reason of their membership, even though in their belief each is a minister. Cf. Cox v. United States, 1947, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59. On the other hand, a legitimate minister cannot be, for the purposes of the Act, unfrocked simply because all the members of his sect base an exemption claim on the dogma of its faith. That would leave a congregation without a cleric. Each registrant must satisfy the Act's rigid criteria for the exemption. Preaching and teaching the principles of one's sect, if performed part-time or half-time, occasionally or irregularly, are insufficient to bring a registrant under § 6(g). These activities must be regularly performed. They must, as the statute reads, comprise the registrant's 'vocation.' And since the ministerial exemption is a matter of legislative grace, the selective service registrant bears the burden of clearly establishing a right to the exemption.7 12 We think Dickinson made out a case which meets the statutory criteria. He was ordained in accordance with the ritual of his sect and, according to the evidence here, he meets the vital test of regularly, as a vocation, teaching and preaching the principles of his sect and conducting public worship in the tradition of his religion. That the ordination, doctrines, or manner of preaching that his sect employs diverge from the orthodox and traditional is no concern of ours; of course the statute does not purport to impose a test of orthodoxy. 13 Why, then, was Dickinson denied IV—D? It may be argued that his five hours a week as a radio repairman supplied a factual basis for the denial. We think not. The statutory definition of a 'regular or duly ordained minister' does not preclude all secular employment. Many preachers, including those in the more traditional and orthodox sects, may not be blessed with congregations or parishes capable of paying them a living wage. A statutory ban on all secular work would mete out draft exemptions with an uneven hand, to the detriment of those who minister to the poor and thus need some secular work in order to survive. To hold that one who supports himself by five hours of secular work each week may thereby lose an exemption to which he is otherwise entitled, would be to achieve a result that Congress so wisely avoided. 14 The court below in affirming the conviction apparently thought the local board was free to disbelieve Dickinson's testimonial and documentary evidence even in the absence of any impeaching or contradictory evidence. The court manifested its own skepticism by pointing to Dickinson's youth, the unorthodox method of ordination by baptism, the failure to present stronger documentary evidence from Watchtower Society leaders, and the customary claim of Jehovah's Witnesses to ministerial exemptions. However, Dickinson's claims were not disputed by any evidence presented to the selective service authorities, nor was any cited by the Court of Appeals. The task of the courts in cases such as this is to search the record for some affirmative evidence to support the local board's overt or implicit finding that a registrant has not painted a complete or accurate picture of his activities. We have found none here. 15 Local boards are not courts of law and are not bound by traditional rules of evidence; they are given great leeway in hearing and considering a variety of material as evidence.8 If the facts are disputed the board bears the ultimate responsibility for resolving the conflict—the courts will not interfere. Nor will the courts apply a test of 'substantial evidence.' However, the courts may properly insist that there be some proof that is incompatible with the registrant's proof of exemption. The local board may question a registrant under oath, subpoena witnesses to testify, and require both registrant and witnesses to produce documents. 32 C.F.R. § 1621.15. The board is authorized to obtain information from local, state, and national welfare and governmental agencies. 32 C.F.R. § 1621.14. The registrant's admissions, testimony of other witnesses, frequently unsolicited evidence from a registrant's neighbors, or information obtained from other agencies may produce dissidence which the boards are free to resolve. Absent such admissions or other evidence, the local boards may call on the investigative agencies of the federal government, as they would if a registrant were suspected of perjury. But when the uncontroverted evidence supporting a registrant's claim places him prima facie within the statutory exemption, dismissal of the claim solely on the basis of suspicion and speculation is both contrary to the spirit of the Act and foreign to our concepts of justice. 16 Reversed. 17 Mr. Justice JACKSON, whom Mr. Justice BURTON and Mr. Justice MINTON join, dissenting. 18 This Court held in Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 427, 90 L.Ed. 567, that in a criminal prosecution under § 11 of the Selective Service Act the court must allow the registrant to prove that his local draft board acted without jurisdiction in classifying him for service. The Court cited several examples of a board acting without jurisdiction, such as where a Pennsylvania board orders a citizen and resident of Oregon to report for induction, or where a board bases classification on the registrant's color or creed in direct defiance of the applicable regulations. But the Court then made this statement: 'The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant.' (Emphasis added.) The import was that a local board loses jurisdiction if there are insufficient facts in the record to support its conclusion. The ramifications of such a theory were not explored at the time and have not been clarified by subsequent decisions.1 But the majority opinion today squarely poses the question of whether such a theory has a place in the statutory scheme of the Selective Service Act. 19 When he registered for service in September 1948, petitioner was 18 years old and claimed to have been a minister of religion of the Jehovah's Witnesses for some 15 months. He had not been ordained. He had been trained as a radio engineer, still supported himself by doing radio repair work at night, and worked at this job about 40 hours a week. He conducted two religious meetings a week, each lasting an hour, and he occasionally spoke at other meetings. He also made house-to-house calls. He had prepared for the ministry, he said, by reading the Bible and other texts published by the Jehovah's Witnesses and by taking a course. After he filed his classification questionnaire, petitioner gave up his radio repair work and was ordained by baptism. He was purportedly in charge of missionary work 'in a 5,400 square mile section of territory.' These events on the eve of his classification and in view of his youth may have raised doubt as to his good faith. The local board and the Appeals Board, without citing their reasons, placed petitioner in Class I—A. 20 No allegation has bene made that the local board or the Appeals Board acted fraudulently or maliciously in this matter. The only logical assumption from the classification is that the boards disbelieved part of petitioner's testimony or doubted his good faith in taking up religious work at the particular time he did. The record itself raises some suspicions, and petitioner's appearance before the local board may well have confirmed these suspicions. 21 The problem inherent in Estep and raised by the majority opinion today is, what is required of the board under such circumstances? It will not do for the Court as in Estep to say on the one hand that the board's action is not subject to 'the customary scope of judicial review' and that 'the courts are not to weigh the evidence', and then on the other to strike down a classification because no affirmative evidence supporting the board's conclusion appears in the record. Under today's decision, it is not sufficient that the board disbelieve the registrant. The board must find and record affirmative evidence that he has misrepresented his case—evidence which is then put to the test of substantiality by the courts. In short, the board must build a record. 22 There is nothing in the Act which requires this result.2 To the contrary, the whole tenor of the Act is that the factual question of whether the registrant is entitled to the claimed exemption shall be left entirely in the hands of the board. The philosophy of the Act is that the obligations and privileges of serving in the armed forces should be shared generally, in accordance with a system of selection which is fair and just. 62 Stat. 604, 50 U.S.C.Appendix, §§ 451—471, 50 U.S.C.A.Appendix, §§ 451—471. To that end it decrees 'Except as otherwise provided in this title, every male citizen of the United States * * * who is between the ages of nineteen and twenty-six * * * shall be liable for training and service in the armed forces * * *.' 62 Stat. 605, 50 U.S.C.Appendix, § 454(a), 50 U.S.C.A.Appendix, § 454(a). The Act then sets up several deferments and exemptions including that claimed here. It is the usual rule that he who claims the benefit of exceptions in a statute carries the burden of establishing that he is entitled to them. And the decisions of the board on these matters are made 'final' by the Act, except where an appeal is authorized. 62 Stat. 620, 50 U.S.C.Appendix, § 460(b)(3), 50 U.S.C.A.Appendix, § 460(b)(3). 23 Even when we all interpret 'final' so as to allow judicial review of the board's jurisdiction, it does not follow that jurisdiction may be lost through a lack of evidence. Despite the comment in Estep that the board's action is not subject to ordinary review, the Court continues to examine and weigh these purely factual determinations. 24 Perhaps what bothers the Court is that when no evidence is introduced against a registrant and the board fails to state its reasons for acting, there is no practical way for the trial court to determine whether the correct statutory standard has been applied. We freely admit the difficulty. However, it is one which the Court should face rather than avoid. Since the record in this case would look the same whether the board acted fraudulently, with a misconception of the lw, or in good faith, how is the trial court to proceed in determining the board's jurisdiction? The board, through silence, makes the registrant's task of proving lack of jurisdiction next to impossible. 25 We think the Act nevertheless requires that in the absence of affirmative proof by the registrant that the board has misconstrued the law or acted arbitrarily, the board's decisions are final and not subject to judicial scrutiny. Whether there is sufficient evidence to grant the exemption is to be left wholly with the board. The Court does not sit here to weigh the evidence. All factual questions are for the board, and its decision is final. The Court may not set aside the board's finding because the Court might have reached a different conclusion. If it is said that this puts an awesome power in the hands of the selective service authorities, we can only reply that conscription is an awesome business. Congress must have weighed this fact when it passed the Act. It must also have realized that to allow each registrant who is denied exemption a trial on the facts would be to place an impossible block in the way of conscription. 1 The title was changed from the 'Selective Service Act of 1948' to the 'Universal Military Training and Service Act' by 65 Stat. 75. 2 Petitioner waived trial by jury in accordance with Rule 23 of the Rules of Criminal Procedure, 18 U.S.C., 18 U.S.C.A. 3 '(A)ny * * * person * * * who * * * refuses * * * service in the armed forces * * * or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title, or rules, regulations, or directions made pursuant to this title * * * shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *.' Dickinson was sentenced to two years' imprisonment. 4 Formerly this regulation was numbered § 1622.19, 32 C.F.R. § 1622.19 (1949). 5 Regular inductions resumed in August 1950. Annual Report of the Director of Selective Service 90 (1952). Since induction was not an immediate threat when Dickinson changed his activities, the change itself would hardly show bad faith, if that were an issue. However, bad faith is not at issue in cases such as this. 6 40 Stat. 80 (1917), 54 Stat. 893 (1940). 7 See 32 C.F.R. § 1622.1(c). 8 32 C.F.R. § 1622.1(c). See Lehr v. United States, 1944, 139 F.2d 919, 922. 1 Eagles v. United States ex rel. Samuels, 329 U.S. 304, 316 317, 67 S.Ct. 313, 319—320, 91 L.Ed. 308; Gibson v. United States, 329 U.S. 338, 67 S.Ct. 301, 91 L.Ed. 331; Sunal v. Large, 332 U.S. 174, 176, 67 S.Ct. 1588, 1589, 91 L.Ed. 1982; Cox v. United States, 332 U.S. 442, 448, 451—455, 68 S.Ct. 115, 119—121, 92 L.Ed. 59. 2 The regulations require the local board to place in the registrant's file for appeal a summary of outside information which was considered by the board. 32 CFR, 1952 Cum.Supp., § 1626.13. We do not interpret this to mean that the board must take the affirmative in securing such information, or that nonevidentiary factors which influenced the board need be summarized, or that in any case these summaries are subject to evaluation by the courts.
23
346 U.S. 402 74 S.Ct. 151 98 L.Ed. 140 PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA, Richard E. Mittelstaedt, Justus F. Craemer et al., appellants,v.UNITED AIR LINES, Inc., Catalina Air Transport and Civil Aeronautics Board. No. 87. Argued Nov. 12, 13, 1953. Decided Nov. 30, 1953. Messrs. Welson E. Cline, Everett C. McKeage, San Francisco, Cal., for appellants. Mr. H. Templeton Brown, Chicago, Ill., for appellee United Air Lines, Inc. Mr. John F. Davis, Washington, D.C., for appellees C.A.B. PER CURIAM. 1 This case is here on appeal from a judgment of a three-judge court for the Northern District of California. United Air Lines v. California Public Utilities Commission, 109 F.Supp. 13. The judgment is reversed on authority of Public Service Commission of Utah v. Wycoff, 344 U.S. 237, 73 S.Ct. 236. 2 Reversed. 3 The CHIEF JUSTICE took no part in the consideration or decision of this case. 4 Mr. Justice DOUGLAS, with whom Mr. Justice REED concurs, dissenting. 5 The case seems to me to be peculiarly one for relief by declaratory judgment. The question is whether California or the Federal Government has jurisdiction over the rates which United Air Lines charges for transportation between points on the mainland of California and Catalina Island. Catalina Island is part of California. Therefore, the California Public Utilities Commission claims jurisdiction. But the Civil Aeronautics Act, 52 Stat. 973, 49 U.S.C. § 401 et seq., 49 U.S.C.A. § 401 et seq., gives the Civil Aeronautics Board authority over rates for transportation 'between places in the same State of the United States through the air space over any place outside thereof'. United Air Lines and the Board both claim that flights from the mainland to Catalina (which is 30 miles from the mainland) are over the 'high seas' and therefore under the exclusive jurisdiction of the Board. That was the view of the District Court. 109 F.Supp. 13. Whether it was right or wrong is the question presented for decision. 6 The controversy is real and substantial, for the California Commission has directed United to file tariffs, claiming unequivocally jurisdiction over the rates to and from Catalina. 7 There is nothing to be gained by requiring United to go through the long, laborious, expensive administrative hearings before the California Commission, only to work its way through the hierarchy of courts up again to this Court so that we may determine whether or not the Civil Aeronautics Board has exclusive authority over these rates. Findings that a local agency may make will soemtimes aid in reducing friction between the state and federal governments by exposing facts which indicate that the state has a legitimate concern in a complex situation where local and interstate intersts are intertwined. No such situation is presented here. It would, I assume, be conceded that the question of what constitutes the 'high seas' is a federal question. The resolution of that question will in no manner be advanced by remitting United to administrative hearings before a commission which—if the District Court below is correct—has no jurisdiction to act. 8 The Declaratory Judgment Act, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, which operates within the confines of the 'case' and 'controversy' standards of the Constitution, see Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, serves many functions for which other remedies were unsuited or which they performed 'rather clumsily' or 'inadequately,' to use the words of the House Report. H.R.Rep. No. 1264, 73d Cong., 2d Sess., p. 2. It was, among other things, 'intended to save tedious and costly litigation by ascertaining at the outset the controlling fact or law involved, thus either concluding the litigation or thereafter confining it within more precise limitations.' Id., p. 2. And the Senate Report noted that one of the functions served by this form of relief is 'the declaration of rights contested under a statute or municipal ordinance, where it was not possible or necessary to obtain an injunction.' S.Rep. No. 1005, 73d Cong., 2d Sess., p. 2. Another is the adjudication of disputes 'without requiring a destruction of the status quo.' Id., p. 6. 9 Of course the right to an adjudication by way of declaratory relief is not a right that litigants can demand. Its allowance depends on a wise discretion. But unless we are to be intolerant of this procedure which Congress created, we should be reluctant to overrule a District Court when it concludes that the controversy is real and the peril and insecurity imminent, and that time and expense can be saved and good relations promoted by resolving the dispute at its inception rather than when all sides are exhausted at the end of a long drawnout litigation. 10 Declaratory relief is peculiarly appropriate in case of a jurisdictional controversy which can be settled by a ruling of law. See Order of Railway Conductors of America v. Swan, 329 U.S. 520, 67 S.Ct. 405, 91 L.Ed. 471. There is that kind of jurisdictional controversy here, for a federal agency claims that a state commission may not act because Congress put the matter exclusively in the federal domain. In a case less clear than this we enjoined state proceedings after concluding that Congress had preempted the field. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447. By the same token we should settle this controversy at this early stage. By denying relief we advance no cause except that of litigation.
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346 U.S. 379 74 S.Ct. 145 98 L.Ed. 106 BANKERS LIFE & CASUALTY CO.v.HOLLAND, Chief Judge of United States District Court of Southern District of Fla. et al. No. 16. Argued Oct. 12, 13, 1953. Decided Nov. 30, 1953. Mr. Charles F. Short, Jr., Chicago, Ill., for petitioners. Mr. M. H. Blackshear, Jr., Atlanta, Ga., for respondents. Mr. Justice CLARK delivered the opinion of the Court. 1 The question here is whether mandamus is an appropriate remedy to vacate a severance and transfer order entered by a district judge on the ground of improper venue, under 28 U.S.C. § 1406(a), 28 U.S.C.A. § 1406(a).1 2 This case arises out of a treble damage action brought by petitioner, an Illinois insurance corporation, in the United States District Court for the Southern District of Florida, alleging a conspiracy to injure petitioner's business, in violation of the Sherman and Clayton Acts, 15 U.S.C.A. § 1 et seq. The complaint named as defendants the insurance commissioners of Georgia and Florida, one other individual, and four insurance companies residing and transacting business in the Southern District of Florida. The Georgia insurance commissioner, Cravey, was personally served in the Northern District of Florida and, without entering his appearance or waiving venue, moved to quash the summons and return of service and dismiss him from the action for improper venue. 3 The applicable venue statute for private treble damage actions brought under the antitrust laws, 15 U.S.C. § 15, 15 U.S.C.A. § 15, allows suit 'in any district court of the United States in the district in which the defendant resides or is found or has an agent * * *.' It is admitted that Commissioner Cravey was not a resident of the Southern District of Florida, but petitioner contends that the Commissioner 'was a member of a conspiracy whose other members were residing and carrying on the illegal business of the conspiracy in the Southern District of Florida, * * * that a conspiracy is a partnership and that co-conspirators are each other's agents * * *' and that the Commissioner therefore was 'found' and had 'agents' in the district, within the meaning of the statute. In furtherance of its theory that the Commissioner was 'found' in the district petitioner alleged overt acts committed by the Commissioner, as well as his codefendants, in the district where the suit was filed. The respondent judge held that the court had jurisdiction of the action and of the Commissioner, under Rule 4(f) of the Rules of Civil Procedure, 28 U.S.C.A., service of process having been had on him in the Northern District of Florida. The judge held, however, that venue was not properly laid and, pursuant to 28 U.S.C. § 1406(a), 28 U.S.C.A. § 1406(a), ordered the action as to Cravey severed and transferred to the Northern District of Georgia where Cravey resided. Petitioner then sought a writ of mandamus from the Court of Appeals to compel the respondent to vacate and set aside the order of severance and transfer. The Court of Appeals dismissed the petition for mandamus on the ground that it was not an appropriate remedy. 5 Cir., 199 F.2d 593. Because of the importance of the question in the effective administration of federal law we granted certiorari. 345 U.S. 933, 73 S.Ct. 796. 4 At the outset it appears to be agreed that the District Court had jurisdiction over Commissioner Cravey under the process served on him in the Northern District of Florida.2 However, petitioner contends that the respondent judge had 'power' to order the severance and transfer only if venue was improperly laid and that when venue is proper that 'power' does not exist. Petitioner insists that venue was proper on the theory aforesaid that the Commissioner was 'found' or had 'agents' in the district; that the severance and transfer order was therefore void but being interlocutory no appeal would lie; and that the only effective remedy is mandamus. While it admits that the order eventually may be reviewed on appeal from final judgment in the case, petitioner contends that insurmountable procedural difficulties requiring appeals from, and reversals of, the final judgments in both the Florida action and the severed action in Georgia render that remedy speculative, ineffective and inadequate in preventing needless expense, hardship and judicial inconvenience. Wherefore, it says, the extraordinary writ of mandamus is appropriate. 5 We are of the opinion that in the circumstances of this case the writ was inappropriate. 6 The All Writs Act grants to the federal courts the power to 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), 28 U.S.C.A. § 1651(a). As was pointed out in Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185, the 'traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' Here, however, petitioner admits that the court had jurisdiction both of the subject matter of the suit and of the person of Commissioner Cravey and that it was necessary in the due course of the litigation for the respondent judge to rule on the motion. The contention is that in acting on the motion and ordering transfer he exceeded his legal powers and this error ousted him of jurisdiction. But jurisdiction need not run the gauntlet of reversible errors. The ruling on a question of law decisive of the issue presented by Cravey's motion and the replication of the petitioner was made in the course of the exercise of the court's jurisdiction to decide issues properly brought before it. Ex parte American Steel Barrel Co., 1913, 230 U.S. 35, 45—46, 33 S.Ct. 1007, 1010, 1011, 57 L.Ed. 1379; Ex parte Roe, 1914, 234 U.S. 70, 73, 34 S.Ct. 722, 723, 58 L.Ed. 1217. Its decision against petitioner, even if erroneous—which we do not pass upon—involved no abuse of judicial power, Roche v. Evaporated Milk Ass'n, supra, and is reviewable upon appeal after final judgment.3 If we applied the reasoning advanced by the petitioner, then every interlocutory order which is wrong might be reviewed under the All Writs Act. The office of a writ of mandamus would be enlarged to actually control the decision of the trial court rather than used in its traditional function of confining a court to its prescribed jurisdiction. In strictly circumscribing piecemeal appeal,4 Congress must have realized that in the course of judicial decision some interlocutory orders might be erroneous. The supplementary review power conferred on the courts by Congress in the All Writs Act is meant to be used only in the exceptional case where there is clear abuse of discretion or 'usurpation of judicial power' of the sort held to justify the writ in De Beers Consolidated Mines v. United States, 1945, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566. This is not such a case. 7 It is urged, however, that the use of the writ of mandamus is appropriate here to prevent 'judicial inconvenience and hardship' occasioned by appeal being delayed until after final judgment. But it is established that the extraordinary writs cannot be used as substitutes for appeals, Ex parte Fahey, 1947, 332 U.S. 258, 259 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041, even though hardship may result from delay and perhaps unnecessary trial, United States Alkali Export Ass'n v. United States, 1945, 325 U.S. 196, 202—203, 65 S.Ct. 1120, 1124, 1125, 89 L.Ed. 1554; Roche v. Evaporated Milk Ass'n, supra, 319 U.S. at page 31, 63 S.Ct. at page 944, 87 L.Ed. 1185; and whatever may be done without the writ may not be done with it. Ex parte Rowland, 1882, 104 U.S. 604, 617, 26 L.Ed. 831. We may assume that, as petitioner contends, the order of transfer defeats the objective of trying related issues in a single action and will give rise to myriad of legal and practical problems as well as inconvenience to both courts; but Congress must have contemplated those conditions in providing that only final judgments are reviewable. Petitioner has alleged no special circumstances such as were present in the cases which it cites.5 Furthermore, whatever 'judicial inconvenience and hardship' may exist here will remain, after transfer, within the realm of the same court of appeals which has denied the writ, since both of the districts are within that circuit; and it is not clear that adequate remedy cannot be afforded petitioner in due course by that court to prevent some of the conflicts and procedural problems anticipated. 8 We note additionally that the petitioner has not met the burden of showing that its right to issuance of the writ is 'clear and indisputable'. United States v. Duell, 1899, 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43 L.Ed. 559. While a criminal action under the antitrust laws lies in any district where the conspiracy was formed or in part carried on or where an overt act was committed in furtherance thereof,6 Congress by 15 U.S.C. § 15, 15 U.S.C.A. § 15, placed definite limits on venue in treble damage actions. Certainly Congress realized in so doing that many such cases would not lie in one district as to all defendants, unless venue was waived. It must, therefore, have contemplated that such proceedings might be severed and transferred or filed in separate districts originally. Thus petitioner's theory has all the earmarks of a frivolous albeit ingenious attempt to expand the statute. 9 We adhere to the language of this Court in Ex parte Fahey, supra, 332 U.S. at pages 259—260, 67 S.Ct. at page 1559, 91 L.Ed. 2041: 10 'Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. We do not doubt power in a proper case to issue such writs. But they have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him. These remedies should be resorted to only where appeal is a clearly inadequate remedy. * * * As extraordinary remedies, they are reserved for really extraordinary causes.' 11 Affirmed. 12 Mr. Justice DOUGLAS concurs in the result. 13 Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON and Mr. Justice MINTON join, dissenting. 14 This case presents one of those clear situations where due regard for the canons governing the exercise of the Court's certiorari jurisdiction calls for dismissal of the writ as improvidently granted. 15 1. Whatever view one may take of the scope of the venue requirement of § 4 of the Clayton Act, 15 U.S.C. § 15, 15 U.S.C.A. § 15, it cannot be doubted that that section precludes the Georgia Commissioner of Insurance from being made a defendant in this suit unless he 'resides or is found or has an agent' in the Southern District of Florida, or has consented, by formal appearance or by some other form of waiver, to be sued there. 16 He has neither consented nor made such a waiver. On the contrary, he has stood on the right Congress gave him and has resisted his amenability to suit in the Southern District of Florida. 17 2. The only basis, on the record before us, for the claim that § 4 subjected the Georgia Commissioner to suit is the suggestion that since the complaint charges a conspiracy between him and co-conspirators who reside in the Southern District of Florida, the latter thereby became his 'agents' within the meaning of § 4 of the Clayton Act. The Court now characterizes this contention as 'frivolous.' Presumably that is why this issue was not brought here and the grant of the writ was restricted to question 1.1 345 U.S. 933, 73 S.Ct. 796. 18 3. If we now had to decide whether a co-conspirator as such is an 'agent' for purposes of venue under 15 U.S.C. § 15, 15 U.S.C.A. § 15, it cannot be doubted that we would have to conclude that the district judge was right in finding that the Georgia Commissioner could not be kept in the suit. Once it is clear that the Georgia defendant has the right to be let out, all discussion of the limits of mandamus becomes irrelevant and gratuitous. Obviously a judge cannot be mandamused to put a proposed defendant into a litigation when as a matter of unquestioned law he should be let out. 19 4. Since the mandamus question would not have been brought here had the volume of business that confronts the Court permitted the record to be examined in passing on the petition for certiorari as it now has been, we should not feel ourselves bound to discuss that question after we have had the kind of careful consideration that is given a case after argument.2 20 5. It is a too easy view that now that the case is here we might as well dispose of it on the assumption on which it was brought here. The short but important answer is that which was made by Chief Justice Taft on behalf of the whole Court in Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed. 712. 21 'If it be suggested that as much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the Circuit Courts of Appeal. The present case certainly comes under neither head.'3 22 The case before us is more compelling for dismissal, since the question on which we granted certiorari does not here arise. 23 6. Discussion of mandamus in this case is not even useful as dicta for future guidance on an important issue. 24 The Court's opinion does not help decision when a party is dismissed from a litigation for reasons not as obviously compelling as those in this case. It necessarily leaves open the question whether such a ruling by a district judge may be reviewed by mandamus, without awaiting the completion of the entire litigation, in circumstances where postponement of review would involve a protracted trial, entailing heavy costs and great inconvenience. Compare Ex parte Skinner & Eddy Corp., 265 U.S. 86, 95—96, 44 S.Ct. 446, 448, 68 L.Ed. 912, with Ex parte Chicago, R.I. & P.R. Co., 255 U.S. 273, 41 S.Ct. 288, 65 L.Ed. 631. This Court ought not to be called upon to hold that where a district judge refused to entertain a 'frivolous' claim, mandamus will not issue to compel him to entertain it. But that is the only holding of the Court's decision today. 1 'The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.' 2 Rule 4(f) of Rules of Civil Procedure: 'Territorial Limits of Effective Service. All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held and, when a statute of the United States so provides, beyond the territorial limits of that state. A subpoena may be served within the territorial limits provided in Rule 45.' 3 See Gulf Research & Development Co. v. Leahy, 3 Cir., 1951, 193 F.2d 302. 4 28 U.S.C. §§ 1291, 1292, 28 U.S.C.A. §§ 1291, 1292. 5 Ex parte Simons, 1918, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094; United States Alkali Export Ass'n v. United States, supra; De Beers Consolidated Mines v. United States, supra. See also Ex parte United States, 1932, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283; State of Maryland v. Soper, 1926, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449. 6 United States v. Trenton Potteries Co., 1927, 273 U.S. 392, 402—403, 47 S.Ct. 377, 381, 71 L.Ed. 700; United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 252—253, 60 S.Ct. 811, 857, 858, 84 L.Ed. 1129. 1 The questions the petition for certiorari presented were as follows: '1. Is mandamus an appropriate remedy to vacate the order of severance and transfer as an unwarranted renunciation of jurisdiction which would compel needless duplicity of trials and appeals to enforce the right to a single trial against all defendants in a proper forum? '2. Where venue is properly laid in a district in which a non-resident conspirator is 'found' and has agents within the meaning of 15 U.S.C. § 15 (15 U.S.C.A. § 15), is mandamus appropriate to vacate the order of severance and transfer as being in excess of the power of transfer conferred by 28 U.S.C. § 1406(a) (28 U.S.C.A. § 1406(a))? '3. Is a non-resident conspirator 'found' for venue purposes within the meaning of 15 U.S.C. § 15 (15 U.S.C.A. § 15), when, although served with process in another district in the same state, venue is laid in a district where he has, in person when physically present and at other times through the agency of his resident co-conspirators, engaged in the business of the conspiracy in violation of the antitrust laws to the substantial injury of plaintiff's business? '4. Are the resident co-conspirators of a non-resident conspirator his agents for venue purposes within the meaning of 15 U.S.C. § 15 (15 U.S.C.A. § 15) when venue is laid in a district where he has, through the agency of his resident co-conspirators, engaged in the business of the conspiracy in violation of the antitrust laws to the substantial injury of plaintiff's business?' 2 It should be noted that during the last Term the Court disposed of 1,286 cases. 3 The case of Hammerstein v. Superior Court, 341 U.S. 491, 71 S.Ct. 820, 95 L.Ed. 1135, is a very recent instance of where the Court after argument took a more careful look at a grant of certiorari and dismissed the writ as improvidently granted.
89
346 U.S. 427 74 S.Ct. 182 98 L.Ed. 168 WILKOv.SWAN et al. No. 39. Argued Oct. 21, 1953. Decided Dec. 7, 1953. Mr. Richard H. Wels, New York City, for petitioner. Mr. William H. Timbers, New York City, for S.E.C., amicus curiae, by special leave of Court. Mr. Horace G. Hitchcock, New York City, for respondents. Mr. Justice REED delivered the opinion of the Court. 1 This action by petitioner,* a customer, against respondents, partners in a securities brokerage firm, was brought in the United States District Court for the Southern District of New York, to recover damages under § 12(2) of the Securities Act of 1933.1 The complaint alleged that on or about January 17, 1951, through the instrumentalities of interstate commerce, petitioner was induced by Hayden, Stone and Company to purchase 1,600 shares of the common stock of Air Associates, Incorporated, by false representations that pursuant to a merger contract with the Borg Warner Corporation, Air Associates' stock would be valued at $6.00 per share over the then current market price, and that financial interests were buying up the stock for the speculative profit. It was alleged that he was not told that Haven B. Page (also named as a defendant but not involved in this review2), a director of, and counsel for, Air Associates was then selling his own Air Associates' stock, including some or all that petitioner purchased. Two weeks after the purchase, petitioner disposed of the stock at a loss. Claiming that the loss was due to the firm's misrepresentations and omission of information concerning Mr. Page, he sought damages. 2 Without answering the complaint, the respondent moved to stay the trial of the action pursuant to § 3 of the United States Arbitration Act3 until an arbitration in accordance with the terms of identical margin agreements was had. An affidavit accompanied the motion stating that the parties' relationship was controlled by the terms of the agreements and that while the firm was willing to arbitrate petitioner had failed to seek or proceed with any arbitration of the controversy. 3 Finding that the margin agreements provide that arbitration should be the method of settling all future controversies, the District Court held that the agreement to arbitrate deprived petitioner of the advantageous court remedy afforded by the Securities Act, and denied the stay.4 A divided Court of Appeals concluded that the Act did not prohibit the agreement to refer future controversies to arbitration, and reversed.5 4 The question is whether an agreement to arbitrate a future controversy is a 'condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision' of the Securities Act which § 146 declares 'void.' We granted certiorari, 345 U.S. 969, 73 S.Ct. 73 S.Ct. 1112, to review this important and novel federal question affecting both the Securities Act and the United States Arbitration Act. Cf. Frost & Co. v. Coeur D'Alene Mines Corp., 312 U.S. 38, 40, 61 S.Ct. 414, 415, 85 L.Ed. 500. 5 As the margin agreement in the light of the complaint evidenced a transaction in interstate commerce, no issue arises as to the applicability of the provisions of the United States Arbitration Act to this suit, based upon the Securities Act. 9 U.S.C. (Supp. V, 1952) § 2, 9 U.S.C.A. § 2. Cf. Tejas Development Co. v. McGough Bros., 5 Cir., 165 F.2d 276, 278, with Agostini Bros. Bldg. Corp. v. United States, 4 Cir., 142 F.2d 854. See Sturges and Murphy, Some Confusing Matters Relating to Arbitration, 17 Law & Contemp. Prob. 580. 6 In response to a Presidential message urging that there be added to the ancient rule of caveat emptor the further doctrine of 'let the seller also beware,'7 Congress passed the Securities Act of 1933. Designed to protect investors,8 the Act requires issuers, underwriters, and dealers to make full and fair disclosure of the character of securities sold in interstate and foreign commerce and to prevent fraud in their sale.9 To effectuate this policy, § 12(2) created a special right to recover for misrepresentation which differs substantially from the common-law action in that the seller is made to assume the burden of proving lack of scienter.10 The Act's special right is enforceable in any court of competent jurisdiction—federal or state—and removal from a state court is prohibited. If suit be brought in a federal court, the purchaser has a wide choice of venue, the privilege of nation-wide service of process and the jurisdictional $3,000 requirement of diversity cases is inapplicable.11 7 The United States Arbitration Act establishes by statute the desirability of arbitration as an alternative to the complications of litigation. The reports of both Houses on that Act stress the need for avoiding the delay and expense of litigation,12 and practice under its terms raises hope for its usefulness both in controversies based on statutes13 or on standards otherwise created.14 This hospitable attitude of legislatures and courts toward arbitration, however, does not solve our question as to the validity of petitioner's stipulation by the margin agreements, set out below, to submit to arbitration controversies that might arise from the transactions.15 8 Petitioner argues that § 14, note 6, supra, shows that the purpose of Congress was to assure that sellers could not maneuver buyers into a position that might weaken their ability to recover under the Securities Act. He contends that arbitration lacks the certainty of a suit at law under the Act to enforce his rights. He reasons that the arbitration paragraph of the margin agreement is a stipulation that waives 'compliance with' the provision of the Securities Act, set out in the margin, conferring jurisdiction of suits and special powers.16 9 Respondent asserts that arbitration is merely a form of trial to be used in lieu of a trial at law,17 and therefore no conflict exists between the Securities Act and the United States Arbitration Act either in their language or in the congressional purposes in their enactment. Each may function within its own scope, the former to protect investors and the latter to simplify recovery for actionable violations of law by issuers or dealers in securities. 10 Respondent is in agreement with the Court of Appeals that the margin agreement arbitration paragraph, note 15, supra, does not relieve the seller from either liability or burden of proof, note 1, supra, imposed by the Securities Act.18 We agree that in so far as the award in arbitration may be affected by legal requirements, statutes or common law, rather than by considerations of fairness, the provisions of the Securities Act control.19 This is true even though this proposed agreement has no requirement that the arbitrators follow the law. This agreement of the parties as to the effect of the Securities Act includes also acceptance of the invalidity of the paragraph of the margin agreement that relieves the respondent sellers of liability for all 'representation or advice by you or your employees or agents regarding the purchase or sale by me of any property. * * *' 11 The words of § 14, note 6, supra, void and 'stipulation' waiving compliance with any 'provision' of the Securities Act. This arrangement to arbitrate is a 'stipulation,' and we think the right to select the judicial forum is the kind of 'provision' that cannot be waived under § 14 of the Securities Act. That conclusion is reached for the reasons set out above in the statement of petitioner's contention on this review. While a buyer and seller of securities, under some circumstances, may deal at arm's length on equal terms, it is clear that the Securities Act was drafted with an eye to the disadvantages under which buyers labor. Issuers of and dealers in securities have better opportunities to investigate and appraise the prospective earnings and business plans affecting securities than buyers. It is therefore reasonable for Congress to put buyers of securities covered by that Act on a different basis from other purchasers. 12 When the security buyer, prior to any violation of the Securities Act, waives his right to sue in courts, he gives up more than would a participant in other business transactions. The security buyer has a wider choice of courts and venue. He thus surrenders one of the advantages the Act gives him and surrenders it at a time when he is less able to judge the weight of the handicap the Securities Act places upon his adversary. 13 Even though the provisions of the Securities Act, advantageous to the buyer, apply, their effectiveness in application is lessened in arbitration as compared to judicial proceedings. Determination of the quality of a commodity20 or the amount of money due under a contract is not the type of issue here involved.21 This case requires subjective findings on the purpose and knowledge of an alleged violator of the Act. They must be not only determined but applied by the arbitrators without judicial instruction on the law. As their award may be made without explanation of their reasons and without a complete record of their proceedings, the arbitrators' conception of the legal meaning of such statutory requirements as 'burden of proof,' 'reasonable care' or 'material fact,' see, note 1, supra, cannot be examined. Power to vacate an award is limited.22 While it may be true, as the Court of Appeals thought, that a failure of the arbitrators to decide in accordance with the provisions of the Securities Act would 'constitute grounds for vacating the award pursuant to section 10 of the Federal Arbitration Act,'23 that failure would need to be made clearly to appear. In unrestricted submission, such as the present margin agreements envisage, the interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation.24 The United States Arbitration Act contains no provision for judicial determination of legal issues such as is found in the English law.25 As the protective provisions of the Securities Act require the exercise of judicial direction to fairly assure their effectiveness, it seems to us that Congress must have intended § 14, note 6, supra, to apply to waiver of judicial trial and review.26 14 This accords with Boyd v. Grand Trunk Western R. Co., 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55.27 We there held invalid a stipulation restricting an employee's choice of venue in an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Section 6 of that Act permitted suit in any one of several localities and § 5 forbade a common carrier's exempting itself from any liability under the Act.28 Section 5 had been adopted to avoid contracts waiving employers' liability.29 It is to be noted that in words it forbade exemption only from 'liability.' We said the right to select the 'forum' even after the creation of a liability is a 'substantial right' and that the agreement, restricting that choice, would thwart the express purpose of the statute. We need not and do not go so far in this present case. By the terms of the agreement to arbitrate, petitioner is restricted in his choice of forum prior to the existence of a controversy. While the Securities Act does not require petitioner to sue,30 a waiver in advance of a controversy stands upon a different footing.31 15 Two policies, not easily reconcilable, are involved in this case. Congress has afforded participants in transactions subject to its legislative power an opportunity generally to secure prompt, economical and adequate solution of controversies through arbitration if the parties are willing to accept less certainty of legally correct adjustment.32 On the other hand, it has enacted the Securities Act to protect the rights of investors and has forbidden a waiver of any of those rights. Recognizing the advantages that prior agreements for arbitration may provide for the solution of commercial controversies, we decide that the intention of Congress concerning the sale of securities is better carried out by holding invalid such an agreement for arbitration of issues arising under the Act. 16 Reversed. 17 Mr. Justice JACKSON, concurring. 18 I agree with the Court's opinion insofar as it construes the Securities Act to prohibit waiver of a judicial remedy in favor of arbitration by agreement made before any controversy arose. I think thereafter the parties could agree upon arbitration. However, I find it unnecessary in this case, where there has not been and could not be any arbitration, to decide that the Arbitration Act precludes any judicial remedy for the arbitrators' error of interpretation of a relevant statute. 19 Mr. Justice FRANKFURTER, whom Mr. Justice MINTON joins, dissenting. 20 If arbitration inherently precluded full protection of the rights § 12(2) of the Securities Act affords to a purchaser of securities, or if there were no effective means of ensuring judicial review of the legal basis of the arbitration, then, of course, an agreement to settle the controversy by arbitration would be barred by § 14, the anti-waiver provision, of that Act. 21 There is nothing in the record before us, nor in the facts of which we can take judicial notice, to indicate that the arbitral system as practiced in the City of New York, and as enforceable under the supervisory authority of the District Court for the Southern District of New York, would not afford the plaintiff the rights to which he is entitled.* 22 The impelling considerations that led to the enactment of the Federal Arbitration Act are the advantages of providing a speedier, more economical and more effective enforcement of rights by way of arbitration than can be had by the tortuous course of litigation, especially in the City of New York. These advantages should not be assumed to be denied in controversies like that before us arising under the Securities Act, in the absence of any showing that settlement by arbitration would jeopardize the rights of the plaintiff. 23 Arbitrators may not disregard the law. Specifically they are, as Chief Judge Swan pointed out, 'bound to decide in accordance with the provisions of section 12(2).' On this we are all agreed. It is suggested, however, that there is no effective way of assuring obedience by the arbitrators to the governing law. But since their failure to observe this law 'would * * * constitute grounds for vacating the award pursuant to section 10 of the Federal Arbitration Act,' 201 F.2d 439, 445, appropriate means for judicial scrutiny must be implied, in the form of some record or opinion, however informal, whereby such compliance will appear, or want of it will upset the award. 24 We have not before us a case in which the record shows that the plaintiff in opening an account had no choice but to accept the arbitration stipulation, thereby making the stipulation an unconscionable and unenforceable provision in a business transaction. The Securities and Exchange Commission, as amicus curiae, does not contend that the stipulation which the Court of Appeals respected, under the appropriate safeguards defined by it, was a coercive practice by financial houses against customers incapable of self-protection. It is one thing to make out a case of overreaching as between parties bargaining not at arm's length. It is quite a different thing to find in the anti-waiver provision of the Securities Act a general limitation on the Federal Arbitration Act. 25 On the state of the record before us, I would affirm the decision of the Court of Appeals. * The Securities and Exchange Commission participated as amicus curiae throughout this case and has shared petitioner's burden in presenting the case to the Court. 1 48 Stat. 74, 15 U.S.C. § 77a et seq., 15 U.S.C.A. § 77a et seq., § 12(2), 48 Stat. 84, 15 U.S.C. § 77l(2), 15 U.S.C.A. § 77l(2), provides: 'Any person who—* * * '(2) sells a security (whether or not exempted by the provisions of section 77c of this title, other than paragraph (2) of subsection (a) of section 77c of this title), by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.' 2 See Wilko v. Swan, 2 Cir., 201 F.2d 439, 445. 3 9 U.S.C. § 1 et seq. (Supp. V, 1952), 9 U.S.C.A. § 1 et seq. Section 3 provides: 'If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.' 4 Wilko v. Swan, D.C.N.Y., 107 F.Supp. 75. 5 Wilko v. Swan, 2 Cir., 201 F.2d 439. 6 48 Stat. 84, 15 U.S.C. § 77n, 15 U.S.C.A. § 77n. Section 14 provides: 'Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.' 7 H.R.Rep.No.85, 73d Cong., 1st Sess. 2. 8 S.Rep.No.47, 73d Cong., 1st Sess. 1. See Oklahoma-Texas Trust v. S.E.C., 10 Cir., 100 F.2d 888, 891. 9 48 Stat. 74, Preamble; 48 Stat. 77, 15 U.S.C. § 77d, 15 U.S.C.A. § 77d. See Frost & Co. v. Coeur D'Alene Mines Corp., 312 U.S. 38, 40, 61 S.Ct. 414, 415, 85 L.Ed. 500. 10 See note 1, supra. 'Unless responsibility is to involve merely paper liability it is necessary to throw the burden of disproving responsibility for reprehensible acts of omission or commission on those who purport to issue statements for the public's reliance. * * * To impose a lesser responsibility would nullify the purposes of this legislation.' H.R.Rep.No.85, 73d Cong., 1st Sess. 9—10. 11 § 22(a), 48 Stat. 86, as amended 49 Stat. 1921, 15 U.S.C. § 77v(a), 15 U.S.C.A. § 77v(a). See Deckert v. Independence Shares Corp., 311 U.S. 282, 289, 61 S.Ct. 229, 233, 85 L.Ed. 189. Existing remedies at law and equity are retained. § 16, 48 Stat. 84, 15 U.S.C. § 77p, 15 U.S.C.A. § 77p. 12 H.R.Rep.No.96, 68th Cong., 1st Sess. 1—2; S.Rep.No.536, 68th Cong., 1st Sess. 3. See Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 52 S.Ct. 166, 76 L.Ed. 282. 13 Agostini Bros. Bldg. Corp. v. United States, 4 Cir., 142 F.2d 854; Watkins v. Hudson Coal Co., 3 Cir., 151 F.2d 311; Donahue v. Susquehanna Collieries Co., 3 Cir., 138 F.2d 3; Donahue v. Susquehanna Collieries Co., 3 Cir., 160 F.2d 661; Evans v. Hudson Coal Co., 3 Cir., 165 F.2d 970. 14 Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 52 S.Ct. 166, 76 L.Ed. 282; Kentucky River Mills v. Jackson, 6 Cir., 206 F.2d 111; Campbell v. American Fabrics Co., 2 Cir., 168 F.2d 959; Columbian Fuel Corp. v. United Fuel Gas Co., D.C.W.Va., 72 F.Supp. 843, affirmed, 4 Cir., 165 F.2d 746; Matter of Springs Cotton Mills v. Buster Boy Suit Co., 275 App.Div. 196, 88 N.Y.S.2d 295, affirmed 300 N.Y. 586, 89 N.E.2d 877; White Star Mining Co. v. Hultberg, 220 Ill. 578, 77 N.E. 327; Oregon-Washington R. & N. Co. v. Spokane, P. & S.R. Co., 83 Or. 528, 163 P. 600; Sturges, Commercial Arbitrations and Awards, pp. 502, 793—798. 15 'Any controversy arising between us under this contract shall be determined by arbitration pursuant to the Arbitration Law of the State of New York, and under the rules of either the Arbitration Committee of the Chamber of Commerce of the State of New York, or of the American Arbitration Association, or of the Arbitration Committee of the New York Stock Exchange or such other Exchange as may have jurisdiction over the matter in dispute, as I may elect. Any arbitration hereunder shall be before at least three arbitrators.' 16 48 Stat. 86, as amended, 49 Stat. 1921, 15 U.S.C. § 77v(a), 15 U.S.C.A. § 77v(a). Section 22(a) provides: 'The district courts of the United States * * * shall have jurisdiction * * * concurrent with State and Territorial courts, of all suits in equity and actions at law brought to enforce any liability or duty created by this subchapter. Any such suit or action may be brought in the district wherein the defendant is found or is an inhabitant or transacts business, or in the district where the sale took place, if the defendant participated therein, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. Judgments and decrees so rendered shall be subject to review as provided in sections (1292—93) and (1254) of Title 28. No case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States. * * *' See note 11, supra. 17 See Murray Oil Products v. Mitsui & Co., 2 Cir., 146 F.2d 381, 383; American Locomotive Co., v. Chemical Research Corp., 6 Cir., 171 F.2d 115, 120. 18 'Paragraph 3 of the margin agreement provides that all transactions 'shall be subject to the provisions of the Securities Exchange Act of 1934 and present and future acts amendatory thereto (15 U.S.C.A. § 78a et seq.).' It contains no express mention of the Securities Act of 1933. If reference to the 1934 Act were construed as excluding the 1933 Act, it might be argued that the agreement did not provide for arbitration of a controversy as to the liability of Hayden, Stone & Co. under section 12(2) of the 1933 Act. But we do not think the principle of expressio unius est exclusio alterius is here applicable. It may well be that the phrase 'present * * * acts * * * supplemental' to the 1934 Act should be construed to include the 1933 Act. In any event the sale transaction would necessarily be subject to that Act. Therefore the amicus does not regard it as material whether or not the agreement purports to make that statute applicable. We agree, and shall proceed to a consideration of the question decided below, namely, whether the 1933 Act evidences a public policy which forbids referring the controversy to arbitration.' 201 F.2d at page 443. The paragraph of the agreement referred to by the Court of Appeals as '3' reads as follows: 'All transactions made by you or your agents for me are to be subject to the constitutions, rules, customs and practices of the exchanges or markets where executed and of their respective clearing houses and shall be subject to the provisions of the Securities Exchange Act of 1934 and present and future acts amendatory thereof or supplemental thereto, and to the rules and regulations of the Federal Securities and Exchange Commission and of the Federal Reserve Board insofar as they may be applicable * * *.' 19 See Sturges, Commercial Arbitrations and Awards, 500. 20 Campe Corp. v. Pacific Mills, Sup., 87 N.Y.S.2d 16, reversed 275 App.Div. 634, 92 N.Y.S.2d 347. 21 Evans v. Hudson Coal Co., 3 Cir., 165 F.2d 970; Donahue v. Susquehanna Collieries Co., 3 Cir., 160 F.2d 661; Watkins v. Hudson Coal Co., 3 Cir., 151 F.2d 311; Donahue v. Susquehanna Collieries Co., 3 Cir., 138 F.2d 3; Agostini Bros. Bldg. Corp. v. United States, 4 Cir., 142 F.2d 854; American Almond Prod. Co. v. Consolidated Pecan S. Co., 2 Cir., 144 F.2d 448. 22 9 U.S.C. (Supp. V, 1952) § 10, 9 U.S.C.A. § 10: 'In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration— '(a) Where the award was procured by corruption, fraud, or undue means. '(b) Where there was evident partiality or corruption in the arbitrators, or either of them. '(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced. '(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. '(e) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators.' 23 Wilko v. Swan, 2 Cir., 201 F.2d 439, 445. 24 Burchell v. Marsh, 17 How. 344, 349, 15 L.Ed. 96; United States v. Farragut, 22 Wall. 406, 413, 419—421, 22 L.Ed. 879 (note the right of review); Kleine v. Catara, 14 Fed.Cas. page 732, No. 7, 869; Texas & P. Ry. Co. v. St. Louis Southwestern Ry. Co., 8 Cir., 158 F.2d 251, 256; The Hartbridge (North England S.S. Co. v. Munson S.S. Line), 2 Cir., 62 F.2d 72, 73. In Mutual Benefit Health & Acc. Ass'n v. United Cas. C., 1 Cir., 142 F.2d 390, 393, the problem was dealt with on the basis of the Massachusetts law. See Sturges, note 19, supra; Note, Judicial Review of Arbitration Awards on the Merits, 63 Harv.L.Rev. 681, 685, Award Based on Erroneous Rule; Cox, The Place of Law in Labor Arbitration, XXXIV Chicago Bar Rec. 205. 25 Arbitration Act, 1950, 14 Geo VI, c. 27, § 21, 29 Halsbury's Statutes of England 2d ed.) p. 106. 26 Cf. notes 66 Harv.L.Rev. 1326; 53 Col.L.Rev. 735; 41 Georgetown L.J. 565; 62 Yale L.J. 985. 27 See also, Krenger v. Pennsylvania R. Co., 2 Cir., 174 F.2d 556; Akerly v. New York Cent. R. Co., 6 Cir., 168 F.2d 812. 28 § 5 of the Federal Employers' Liability Act, 35 Stat. 66, 45 U.S.C. § 55, 45 U.S.C.A. § 55, provides: 'Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void * * *.' 29 See H.R.Rep.No.1386, 60th Cong., 1st Sess. 6. Compare Baltimore & O.S.R. Co. v. Voigt, 176 U.S. 498, 20 S.Ct. 385, 44 L.Ed. 560. 30 Cf. Callen v. Pennsylvania R. Co., 332 U.S. 625, 631, 68 S.Ct. 296, 298, 92 L.Ed. 242. 31 Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 707, 714, 65 S.Ct. 895, 905, 89 L.Ed. 1296. 32 Cf. Wilko v. Swan, 2 Cir., 201 F.2d at page 444. * Under the rules of the American Arbitration Association, available to the plaintiff under his contract, the procedure for selection of arbitrators is as follows: The Association submits a list of potential arbitrators qualified by experience to adjudicate the particular controversy. In the City of New York, the list would be drawn from a panel of 4,400 persons, 1,275 of whom are lawyers. Each party may strike off the names of any unacceptable persons and number the remaining in order of preference. The Association then designates the arbitrators on the basis of the preferences expressed by both parties. See 'Questions and Answers,' Pamphlet of American Arbitration Association. In short, those who are charged to enforce the rights are selected by the parties themselves from among those qualified to decide.
78
346 U.S. 441 74 S.Ct. 190 98 L.Ed. 179 UNITED STATESv.FIVE GAMBLING DEVICES, LABELED IN PART 'MILLS,' AND BEARING SERIAL NOS. 593—221, ETC. UNITED STATES v. DENMARK. UNITED STATES v. BRAUN. Nos. 14, 40, 41. Argued Oct. 12, 1953. Decided Dec. 7, 1953. Mr. Robert L. Stern, Acting Sol. Gen., Washington, D.C., for appellant. Mr. Shelby Myrick, Savannah, Ga., for appellees Denmark and Braun. No appearance for appellee in No. 14. Mr. Justice JACKSON announced the judgment of the Court and an opinion in which Mr. Justice FRANKFURTER and Mr. Justice MINTON join. 1 These cases present unsuccessful attempts, by two different procedures, to enforce the view of the Department of Justice as to construction of the Act of January 2, 1951,1 which prohibits shipment of gambling machines in interstate commerce but includes incidental registration and reporting provisions. Two indictments charge Denmark and Braun severally with engaging in the business of dealing in gambling devices without registering with the Attorney General and reporting sales and deliveries. Both indictments were dismissed. The other proceeding is a libel to forfeit five gambling machines seized by Federal Bureau of Investigation agents from a country club in Tennessee. It also was dismissed. 2 The three cases, here on Government appeals, are similar in features which led to their dismissal and which raise constitutional issues. The indictments do not allege that the accused dealers, since the effective date of the Act or for that matter at any other time, have bought, sold or moved gambling devices in interstate commerce, or that the devices involved in their unreported sales have, since the effective date of the Act or at any other time, moved in interstate commerce or ever would do so. The libel does not show that the country club's machines were at any time transported in or in any way affect interestate commerce. 3 Section 2 of the Act prohibits transportation of gambling devices in interstate commerce except to any state which exempts itself or its subdivision by state law.2 Section 3 requires every manufacturer and dealer in gambling devices annually to register his business and name and monthly to file detailed information as to each device sold and delivered during the preceding month.3 Section 6 provides criminal penalties for failure to register or for violation of the transportation section,4 and § 7 authorizes forfeiture of devices sold in violation of the Act.5 4 The information requirements are not expressly limited to persons engaged or transactions occurring in interstate commerce or conditioned on any connection therewith. Neither does the Act by any specific terms direct its application to transactions such as we have here. 5 Appellees contend, first, that the Act should not be construed to reach dealers, transactions or machines unless shown to have some relation to interestate commerce; second, construed, otherwise, the Act exceeds the power delegated to Congress under the Commerce Clause of the Constitution; third, the statute is unconstitutionally vague. 6 The Government answers, first, that the statute, literally read, reaches all dealers and transactions and the possession of all unreported devices without reference to interstate commerce; second, to make effective the prohibition of transportation in interstate commerce, Congress may constitutionally require reporting of all intrastate transactions; and, third, while Congress, by oversight, left an inappropriate and confusing phrase in the Act, the defect is not fatal inasmuch as the Attorney General has power to supplement the Act by regulations which will cure its indefiniteness.6 7 We do not intimate any ultimate answer to the appellees' constitutional questions other than the observe that they cannot be dismissed as frivolous, nor as unimportant to the nature of our federation. No precedent of this Court sustains the power of Congress to enact legislation penalizing failure to report information concerning acts not shown to be in, or mingled with, or found to affect commerce. The course of decision relied on by the Government on analysis falls short of the holding asked of us here. Indeed, we find no instance where Congress has attempted under the commerce power to impose reporting duties under penal sanction which would raise the question posed by these proceedings.7 It is apparent that the Government's pleadings raise, and no doubt were intended to raise, a far-reaching question as to the extent of congressional power over matters internal to the individual states. 8 Of course, Congress possesses not only power to regulate commerce among the several states but also an inexact power 'To make all Laws which shall be necessary and proper for carrying into Execution' its enumerated powers. In some instances Congress has left to an administrative body, such as the Interstate Commerce Commission or the National Labor Relations Board, the power to decide on a case-to-case basis whether the particular intrastate activity affects interstate commerce so as to warrant exercise of the power to reach into intrastate affairs.8 Decisions under this type of legislation give the Government no support, for no such determination is required by this Act, and the Government asserts no such finding by anyone is necessary. In other statutes Congress has set up economic regulations which lay hold of activities in interstate commerce but also include intrastate activities so intermingled therewith that separation is impractical or impossible.9 Of course, decisions upholding legislation requiring information in aid of the taxing power10 afford no support here, because the taxing power penetrates and permeates every activity, intrastate or interstate, within the Nation. While general statements, out of these different contexts, might bear upon the subject one way or another, it is apparent that the precise question tendered to us now is not settled by any prior decision. 9 The principle is old and deeply imbedded in our jurisprudence that this Court will construe a state in a manner that requires decision of serious constitutional questions only if the statutory language leaves no reasonable alternative. United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543. This is not because we would avoid or postpone difficult decisions. The predominant consideration is that we should be sure Congress has intentionally put its power in issue by the legislation in question before we undertake a pronouncement which may have far-reaching consequences upon the powers of the Congress or the powers reserved to the several states. To withhold passing upon an issue of power until we are certain it is knowingly precipitated will do not great injury, for Congress, once we have recognized the question, can make its purpose explicit and thereby necessitate or avoid decision of the question. Judicial abstention is especially wholesome where we are considering a penal statute. Our policy in constitutional cases is reinforced by the long tradition and sound reasons which admonish against enlargement of criminal statutes by interpretation. 10 This Court does and should accord a strong presumption of constitutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power. The rational and practical force of the presumption is at its maximum only when it appears that the precise point in issue here has been considered by Congress and has been explicitly and deliberately resolved.11 But the presumption can have little realism when responsible congressional committees and leaders, in managing a bill, have told Congress that the bill will not reach that which the Act is invoked in this Court to cover. 11 We do not question that literal language of this Act is capable of the broad, unlimited construction urged by the Government. Indeed, if it were enacted for a unitary system of government, no other construction would be appropriate. But we must assume that the implications and limitations of our federal system constitute a major premise of all congressional legislation, though not repeatedly recited therein. Against the background of our tradition and system of government, we cannot say that the lower courts, which have held as a matter of statutory construction that this Act does not reach purely intrastate matters, have not made a permissible interpretation.12 We find in the text no unmistakable intention of Congress to raise the constitutional questions implicit in the Government's effort to apply the Act in its most extreme impact upon affairs considered normally reserved to the states. 12 Judges differ as to the value of legislative history in statutory construction, but the Government often relies upon it to sustain its interpretation of statutes. However, in this case its reference to legislative history is conspicuously meager and unenlightening.13 On the other hand, for what it is worth, appellees point out much that was reported by responsible committees and said by proponents of this antigambling-device legislation to indicate that Congress did not intend to raise the issues here presented and was not aware it was doing so. For example, Senator Johnson, sponsor of the bill which eventually became this Act, declared that '* * * it keeps the Federal Government out of State and local police powers; no Federal official is going to become an enforcement officer in any State or locality.'14 The committee handling the bill reported: 'On the other hand, the committee desires to emphasize that Federal law enforcement in the field of gambling cannot and should not be considered a substitute for State and local law enforcement in this field.'15 But here it was the Federal Bureau of Investigation which entered a country club and seized slot machines not shown ever to have had any connection with interstate commerce in any manner whatever. If this is not substituting federal for state enforcement, it is difficult to know how it could be accomplished. A more local and detailed act of enforcement is hardly conceivable. These cases, if sustained, would substantially take unto the Federal Government the entire pursuit of the gambling device. 13 No committee appears to have anticipated this, for the then Attorney General informed the committee, and it reported itself in agreement with the view, that 'Actually enforcement against those people who gamble or use these machines wrongfully in the States is left with the States, and with the local officials, and there is absolutely no intention on the part of the Federal Government, express or otherwise, in this bill or anything that accompanies it, to get us into a prohibition era.'16 It is impossible to reconcile statements of this kind, on which the Congress may have placed reliance, with the Government's present interpretation of the Act. 14 As we have indicated, the present indictments and libel are so framed as to apply to extreme form the most expansive interpretation of this Act. All that we would decide at present is a question of statutory construction. We think the Act does not have the explicitness necessary to sustain the pleadings which the Government has drafted in these cases. On this ground alone, we would affirm the judgments below. 15 Judgments affirmed. 16 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring. 17 I concur in the judgment, but regret my inability to agree with the reasons for affirmance expressed in the opinion of Mr. Justice JACKSON. The language of § 3 of the Act on which the charges rest requires dealers to report 'all sales and deliveries of gambling devices * * *.' No other language in the Act, and nothing in its legislative history, indicates to me that Congress was not here hitting at 'all sales,' including purely intrastate ones. In this situation I do not feel at liberty to read intrastate sales out of the Act, even if constitutional questions could thereby be avoided.* 18 Section 3 requires a gambling device dealer to register with the Attorney General 'his name or trade name, the address of his principal place of business, and the addresses of his places of business in such district.' (Emphasis supplied.) Thereafter dealers must make detailed monthly reports of inventories, sales and deliveries for the 'places of business' in the district. But the use of the phrase 'such district' is bound to leave a dealer bewildered. Does the phrase refer to the place where a dealer is compelled to file his papers? Or does it simply force him to tell in what 'district' he maintains 'places'? If a dealer is able to solve this puzzle, how is he to find 'such district'? The Act gives no hint as to where the 'district' is or how a person can locate it. It never describes any 'district.' Yet failure to comply with these unascertainable requirements is punishable by fine up to $5,000, imprisonment up to two years, or both. This punishment, at least, is certain. I would apply the established rule that 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. 19 Nor can a criminal statute too vague to be constitutionally valid be saved by additions made to it by the Attorney General. Of course, Congress could have prescribed that reports should be made at reasonably accessible places designated by the Attorney General. Cf. United States v. Eaton, 144 U.S. 677, 12 S.Ct. 764, 36 L.Ed. 591. But the Act under consideration did not do this. The Attorney General did promulgate an attempted clarifying regulation under the purported authority of R.S. *s 161, 5 U.S.C. § 22, 5 U.S.C.A. § 22. That statute provides no more than a general authorization to the heads of all departments to prescribe regulations governing their departments, officers, clerks, records, papers, etc. There is certainly not sufficient specificity in this grant concerning routine departmental business to support the Attorney General's attempt to infuse life into an Act of Congress unenforceable for vagueness. The vital omission in this criminal statute can be supplied by the legislative branch of government, not by the Attorney General. I would affirm these judgments. 20 Mr. Justice CLARK, with whom The CHIEF JUSTICE, Mr. Justice REED and Mr. Justice BURTON concur, dissenting. I. 21 I agree with Mr. Justice BLACK on the question of statutory construction, that § 3 of the Act means just what it says: 'every manufacturer of and dealer in gambling devices' is required to register with the Attorney General and file with him certain records, without reference to interstate commerce. Mr. Justice JACKSON'S opinion states that 'this Court will construe a statute in a manner that requires decision of serious constitutional questions only if the statutory language leaves no reasonable alternative.' I agree; but I think that the statutory language involved here leaves no reasonable alternative. It would be difficult for Congress to be more explicit than to direct the statute's mandate, as it has here, to 'every' manufacturer and dealer without qualification. In United States v. Sullivan, 1948, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297, the Court dealt with a highly analogous situation; the opinion of the Court there was that 'A restrictive interpretation should not be given a statute merely because * * * giving effect to the express language employed by Congress might require a court to face a constitutional question.' 332 U.S. at page 693, 68 S.Ct. at page 334. 22 If by legislative history or otherwise it could persuasively be shown that Congress intended that the word 'every' be given other than its plain meaning, we should likely consider such evidence in interpreting the statute. See Boston Sand & Gravel Co. v. United States, 1928, 278 U.S. 41, 48, 49 S.Ct. 52, 53, 73 L.Ed. 170. But I think the legislative history on this issue is almost totally unenlight ening.1 Of the meager evidence available perhaps strongest support is furnished the construction resulting from a literal reading of the section. The bill, including the part of § 3 here in issue as passed without discussion, was drafted pursuant to the resolution of a 'crime conference' consisting of leading national and local officials and others interested in law enforcement, in cooperation with the Department of Justice. The conference's unanimous resolution was 'Resolved, That this conference endorse the idea of Federal legislation to prohibit the shipment of gambling devices into or out of any State where the possession or use of such devices is illegal. Further, requiring Federal registration of all such machines sold within States.'2 The bill was drafted shortly thereafter by the Justice Department, with § 3 requiring registration and filing by 'every' dealer and manufacturer. That part of the section was never changed and apparently was never discussed by Congress. 23 Concedely, to give the provision its literal meaning affords far more effective enforcement with respect to other sections of the Act than would be the case if any of the other suggested interpretations were applied.3 24 For these reasons I am unable to agree with the solution of these cases offered by Mr. Justice JACKSON. II. 25 I am also unable to agree that the statute is unconstitutionally vague. 26 Section 3 requires that at specified times 'every manufacturer of and dealer in gambling devices shall register with the Attorney General his name or trade name, the address of his principal place of business, and the addresses of his places of business in such district', and that there be filed monthly with the Attorney General 'an inventory and record of all sales and deliveries of gambling devices as of the close of the preceding calendar month for the place or places of business in the district.' 27 I do not mean to suggest that these provisions are models of clarity; when words are left in a statute by oversight, exemplary draftsmanship hardly results. But our function is not to discipline Congress for its failure to dot the i's and cross the t's. It is rather to make certain that the conduct required has been made sufficiently clear that to impose sanctions for ignoring the statute's requirements will not violate due process of law. 28 The appellees ask us to hold that this is a case 'where patently ambiguous language is so unclear and equivocal as to render its enforcement a denial of due process'; they argue that conviction here violates the rule that 'no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes,' and that all are entitled to be informed as to what the statute commands or forbids, citing Lanzetta v. State of New Jersey, 1939, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888. In my view speculation is not here required, unless one seeks to avoid compliance with the law; I think that all who would comply with the law are sufficiently informed of what is required of them to assure that any bona fide attempt at compliance would be successful. 29 Appellees' complaint, according to their brief, appears to be not that the statute does not tell them what to file, but that it does not tell them where to file it. As I read the Act, several things are at once apparent: (1) the registrant must register with someone his name and the addresses of all his places of business, designating the principal one if he has more than one; (2) he must file monthly an inventory and record of all sales and deliveries of gambling devices; (3) this registration and filing must be done with the Attorney General—for the Act provides in clearest terms that he 'shall register with the Attorney General his name' etc., and that he 'shall file with the Attorney General an inventory' etc. I take it that, aside from 5 U.S.C. § 291, 5 U.S.C.A. § 291, which provides that the Attorney General shall be at the seat of government, it is common knowledge that the Attorney General is located in Washington, D.C. There can be no doubt that the required information sent to him there would amount to compliance. If one desired to give meaning to 'district,' the Attorney General has United States Attorneys representing him throughout the country. There can be no doubt that the required information sent to the Attorney General through a local United States Attorney would amount to compliance. At any rate the Act did not leave room for doubt that the Attorney General was to receive the specified information. Subsequent to passage of the Act the Attorney General, acting pursuant to 5 U.S.C. § 22, 5 U.S.C.A. § 22, provided by regulation that the required information should be sent to him in Washington, with an exception made in the case of dealers and manufacturers in Illinois (apparently the center of the affected industry), who were directed to register and file with the United States District Attorney there. If there was ever bona fide doubt as to where to file the information, the Attorney General had now made his whereabouts for purposes of the Act crystal clear. 30 The Constitution requires that a statute must not be too vague to allow the citizen to ascertain what course of conduct he must follow to put himself safely within the bounds of the law. Lanzetta v. State of New Jersey, supra. No doubt the forgotten words in the Act provide room for quibbling; and the lawyer who is looking for litigation, or whose client seeks to avoid compliance with the law, can paint a picture of uncertainty and frustrated effort to fathom the unfathomable intent of Congress. But to me it is certain that, with or without the regulations, a person honestly seeking to comply with this law would inevitably have succeeded, without undue mental strain in determining the statute's import and without uncertainty as to his chances of remaining within the bounds of the law. The certainty required by the Due Process Clause is not tested from the would-be violator's standpoint; the test is rather whether adequate guidance is given to those who would be law-abiding. See Musser v. State of Utah, 1948, 333 U.S. 95, 97, 68 S.Ct. 397, 398, 92 L.Ed. 562. The constitutional requirements are met when the statute prescribes a course of conduct which any person acting in good faith can recognize and act upon the presence of the forgotten words in this statute does not transform into a trap for the unwary the express requirements of registration and filing with the Attorney General specified information about one's person, business and places of business. III. 31 The ultimate question presented by these cases is whether Congress has exceeded its constitutional power. I think it has not. 32 It appears that Congress in this Act has embarked on what it deemed the most effective course of action possible to eliminate one of the major sources of income to organized crime, while at the same time yielding to the policy of Nevada and a few other states where slot machines are legal and the underworld's control and profit are correspondingly minimized. The Act prohibits shipment of gambling devices into any state except those which act to exempt themselves from the statute. Section 3, which sets up the registration and filing requirements here in issue, was designed to make effective and enforceable the interstate shipment ban. It was thought that a report on each transfer of each machine before and after interstate shipment would enable enforcement officials to ascertain who transported the machine across state lines and thereby violated the law. Unless all such local sales were reported, it was thought that it would be an easy matter to conceal the identity of the interstate transporter by resorting to straw-man transactions, cover-up intrastate 'sales' before and after interstate shipment, and the like. In view of the established tie-up between slot machines and 'Nation-wide crime syndicates,'4 more stringent methods of enforcement were deemed necessary to accomplish the ban on interstate transportation of the machines than would be needed to control an activity in which dealers and manufacturers could be presumed to the law-abiding citizens who kept accurate books and accounts. The net effect of these considerations is to clearly establish that the registration and filing requirements of the Act amount to reasonably necessary, appropriate, and probably essential means for enforcing the ban on interstate transportation of gambling devices. 33 The question presented, then, is whether Congress is empowered by the Constitution to require information, reasonably necessary and appropriate to make effective and enforceable a concededly valid ban on interstate transportation of gambling devices, from persons not shown to be themselves engaged in interstate activity. I think that an affirmative answer is not inevitably dictated by prior decisions of the Court; but, more important, no decision precludes an affirmative answer. The question has not been previously decided because the legislative scheme utilized here apparently has not been heretofore attempted. But its novelty should not suggests its unconstitutionality. 34 In the body of decisional law defining the scope of Congress' powers in regard to interstate commerce, it has been clearly established that activities local in nature may be regulated if they can fairly be said to 'affect' commerce, or where local goods are commingled with goods destined for interstate commerce, or were previously in interstate commerce.5 For present purposes, these cases at least establish that activities or goods intrastate in nature are not immune from congressional control where they are sufficiently related to interstate activities or goods controlled by Congress. 35 The Court also has on several occasions stated that the commerce power 'extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate Commerce.'6 I think it may accurately be said that every sale of slot machines affects the exercise of the power of Congress over commerce, in view of the elusive nature of the object whose interstate shipment is being controlled. 36 The Constitution empowers Congress 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers * * *.' McCulloch v. State of Maryland, 1819, 4 Wheat. 316, 421, 4 L.Ed. 579, cited in the foregoing cases, interprets this as follows: 37 'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.' 38 The Court in that case added that much leeway is to be given Congress in determining what means are appropriate. 4 Wheat. at page 423, 4 L.Ed. 579. 39 In their brief appellees attack the power of Congress under the Constitution solely on the basis that the registration and filing requirements are not reasonable means of enforcing the provision against interstate transportation of slot machines. I believe that the reasonableness and the necessity of the requirements have already been adequately demonstrated. None of the cases relied on by the appellees suggests a contrary conclusion. The Act's requirements of registration and filing as to local transactions are certainly not a mere ruse designed to invade areas of control reserved to the states, but are 'naturally and reasonably adapted to the effective exercise of' the commerce power.7 40 If Congress by § 3 had sought to regulate local activity, its power would no doubt be less clear. But here there is no attempt to regulate; all that is required is information in aid of enforcement of the conceded power to ban interstate transportation. The distinction is substantial. See Interstate Commerce Commission v. Goodrich Transit Co., 1912, 224 U.S. 194, 211, 32 S.Ct. 436, 439, 56 L.Ed. 729.8 41 In my view Congress has power to require the information described in § 3 of the Act since the requirement is a means reasonably necessary to effectuate the prohibition of transporting gambling devices interstate. If it be suggested that such a holding would open possibilities for widespread congressional encroachment upon local activities whose regulation has been reserved to the states, I would point out, first, that power of regulation heretofore exclusively vested in the states remains there; and second, that the situation here is unique: the commodity involved is peculiarly tied to organized interstate crime and is itself illegal in the great majority of the states, and the federal law in issue was actively sought by local and state law enforcement officials as a means to assist them, not supplant them, in local law enforcement. I would reverse the judgments.9 1 64 Stat. 1134, 15 U.S.C.(Supp. V) §§ 1171—1177, 15 U.S.C.A. §§ 1171—1177. 2 In pertinent part: 'It shall be unlawful knowingly to transport any gambling device to any place in a State, the District of Columbia, or a possession of the United States from any place outside of such State, the District of Columbia, of possession: Provided, That this section shall not apply to transportation of any gambling device to a place in any State which has enacted a law providing for the exemption of such State from the provisions of this section, or to a place in any subdivision of a State if the State in which such subdivision is located has enacted a law providing for the exemption of such subdivision from the provisions of this section. * * *' 64 Stat. 1134, 15 U.S.C.(Supp. V) § 1172, 15 U.S.C.A. § 1172. 3 'Upon first engaging in business, and thereafter on or before the 1st day of July of each year, every manufacturer of and dealer in gambling devices shall register with the Attorney General his name or trade name, the address of his principal place of business, and the addresses of his places of business in such district. On or before the last day of each month every manufacturer of and dealer in gambling devices shall file with the Attorney General an inventory and record of all sales and deliveries of gambling devices as of the close of the preceding calendar month for the place or places of business in the district. The monthly record of sales and deliveries of such gambling devices shall show the mark and number identifying each article together with the name and address of the buyer or consignee thereof and the name and address of the carrier. Duplicate bills or invoices, if complete in the foregoing respects, may be used in filing the record of sales and deliveries. For the purposes of this Act, every manufacturer or dealer shall mark and number each gambling device so that it is individually identifiable. In cases of sale, delivery, or shipment of gambling devices in unassembled form, the manufacturer or dealer shall separately mark and number the components of each gambling device with a common mark and number as if it were an assembled gambling device. It shall be unlawful for any manufacturer or dealer to sell, deliver, or ship any gambling device which is not marked and numbered for identification as herein provided; and it shall be unlawful for any manufacturer or dealer to manufacture, recondition, repair, sell, deliver, or ship any gambling device without having registered as required by this section, or without filing monthly the required inventories and records of sales and deliveries.' 64 Stat. 1135, 15 U.S.C.(Supp. V) § 1173, 15 U.S.C.A. § 1173. 4 'Whoever violates any of the provisions of sections 2, 3, 4, or 5 of this Act shall be fined not more than $5,000 or imprisoned not more than two years, or both.' 64 Stat. 1135, 15 U.S.C.(Supp. V) § 1176, 15 U.S.C.A. § 1176. 5 'Any gambling device transported, delivered, shipped, manufactured, reconditioned, repaired, sold, disposed of, received, possessed, or used in violation of the provisions of this Act shall be seized and forfeited to the United States. All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise, and baggage for violation of the customs laws; the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds from the sale thereof; the remission or mitigation of such forfeiture; and the compromise of claims and the award of compensation to informers in respect of such forfeitures shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this Act, insofar as applicable and not inconsistent with the provisions hereof: Provided, That such duties as are imposed upon the collector of customs or any other person with respect to the seizure and forfeiture of vessels, vehicles, merchandise, and baggage under the customs laws shall be performed with respect to seizures and forfeitures of gambling devices under this Act by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General.' 64 Stat. 1135, 15 U.S.C.(Supp. V) § 1177, 15 U.S.C.A. § 1177. 6 The ambiguity in the statute arose from the following facts: In the bill originally submitted to the Senate, S. 3357, § 3 began: '* * * every manufacturer of and dealer in gambling devices shall register with the collector of internal revenue for each district in which such business is to be carried on, his name (etc.). * * * ' (Emphasis added.) See 96 Cong.Rec. 13649; Hearings before House Committee on Interstate and Foreign Commerce on S. 3357, 81st Cong., 2d Sess. 2. However, the Treasury Department wrote the House committee that since the bill did not concern the collection of revenue, the Justice Department should handle the registration of gambling devices. See H.R.Rep.No.2769, 81st Cong., 2d Sess. 14; Hearings on S. 3357, supra, at 8—9. The House committee therefore deleted from the bill the language italicized above and substituted the words 'Attorney General.' See H.R.Rep.No.2769, supra, at 8—9; 96 Cong.Rec. 13650, 14735, 15106, 15108, 16701. The deletion left without meaning the phrase 'in such district,' which appeared later in the section and which had previously referred back to the district in which the business was to be carried on. The Attorney General attempted to clarify the ambiguity by issuing Department of Justice Order No. 4173, 28 CFR, 1952 Supp., § 3. He claimed authority to issue such a regulation under R.S. § 161, 5 U.S.C. § 22, 5 U.S.C.A. § 22, which reads: 'The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.' 7 Under the liquor law enforcement statutes, the offense was only complete when the unlabeled liquor was shipped in interstate commerce. E.g., 35 Stat. 1137, as amended, 49 Stat. 1930, 18 U.S.C. § 390, 18 U.S.C.A. § 390 (now § 1263). See Blumenthal v. United States, 8 Cir., 88 F.2d 522, 524—525; Arnold v. United States, 8 Cir., 115 F.2d 523, 524. The marking and labeling section of the Ashurst-Sumners Act, 49 Stat. 494, 18 U.S.C. § 396c, 18 U.S.C.A. § 396c (now § 1762), specifically provided that prison-made goods must be marked 'when shipped or transported in interstate or foreign commerce'. See Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 344, 352—353, 57 S.Ct. 277, 279, 282—283, 81 L.Ed. 270, where a suit for mandatory injunction under the Act alleged that the goods had been delivered in interstate commerce. A similar provision appeared in the subsequent statute. 62 Stat. 786, 18 U.S.C. (Supp. III) § 1762(a), 18 U.S.C.A. § 1762(a). The Lacey Act of 1900, 31 Stat. 188, required packages containing deal animals to be plainly marked 'when shipped by interstate commerce'. See Rupert v. United States, 8 Cir., 181 F. 87, 88, 91, where an indictment under the Act charged interstate shipments. The statute preventing passage of lottery tickets in interstate commerce, 62 Stat. 762, 18 U.S.C.(Supp. III), § 1301, 18 U.S.C.A. § 1301, contains no labeling, marking, or information requirements. Neither do the stolen property statutes. 62 Stat. 805, 806, 807, 63 Stat. 96, 18 U.S.C.(Supp. III) §§ 2311—2317, 18 U.S.C.A. §§ 2311—2317. 8 Interstate Commerce Act, 36 Stat. 550, as amended, 41 Stat. 484, 49 U.S.C. § 13(4), 49 U.S.C.A. § 13(4); Houston, E. & W.T.R. Co. v. United States, 234 U.S. 342, 357—359, 34 S.Ct. 833, 838—839, 58 L.Ed. 1341; State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291; State of North Carolina v. United States, 325 U.S. 507, 511, 65 S.Ct. 1260, 1263, 89 L.Ed. 1760; King v. United States, 344 U.S. 254, 267—276, 73 S.Ct. 259, 266—271. National Labor Relations Act, 49 Stat. 450, 452, 453, 454, 455, 29 U.S.C. §§ 152(6), (7), 155, 160(a), (e), (f), as amended, 61 Stat. 138, 140, 146, 147—148, 29 U.S.C.(Supp. III) §§ 152(6), (7), 155, 160(a), (e), (f), 29 U.S.C.A. §§ 152 (6, 7), 155, 160(a, e, f); National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 31, 47, 57 S.Ct. 615, 629, 81 L.Ed. 893; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 49 50, 58 S.Ct. 459, 462—463, 82 L.Ed. 638; Newport News Shipbuilding & Dry Dock Co. v. Schauffler, 303 U.S. 54, 57—58, 58 S.Ct. 466, 467—468, 82 L.Ed. 64; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 466—468, 58 S.Ct. 656, 660 661, 82 L.Ed. 954; Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 223—224, 59 S.Ct. 206, 214 215, 83 L.Ed. 126; National Labor Relations Board v. Denver Building & Construction Trades Council, 314 U.S. 675, 683—684, 71 S.Ct. 943, 948—949, 95 L.Ed. 1284. 9 Hours of Service Acts (Railroads), 34 Stat. 1415, 45 U.S.C. §§ 61—64, 45 U.S.C.A. §§ 61—64; Baltimore & O.R. Co. v. I.C.C., 221 U.S. 612, 31 S.Ct. 621, 55 L.Ed. 878; Interstate Commerce Act, 34 Stat. 584, 49 U.S.C. § 1 et seq., 49 U.S.C.A. § 1 et seq.; Interstate Commerce Comm. v. Goodrich Transit Co., 224 U.S. 194, 32 S.Ct. 436, 56 L.Ed. 729; Grain Futures Act, 42 Stat. 998, as amended; Commodity Exchange Act, 49 Stat. 1491, 7 U.S.C. § 1 et seq., 7 U.S.C.A. § 1 et seq.; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839; Ashurst-Sumners Act (Convict-Made Goods), 49 Stat. 494, 18 U.S.C. §§ 396b, 396c, 18 U.S.C.A. §§ 396b, 396c (now §§ 1761, 1762); Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 57 S.Ct. 277, 81 L.Ed. 270; Tobacco Inspection Act, 49 Stat. 731, 7 U.S.C.(Supp. III) §§ 511a-511q, 7 U.S.C.A. §§ 511a—511q; Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; Agricultural Adjustment Act of 1938, 52 Stat. 31, as amended, 7 U.S.C. § 1281 et seq.; Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092; as amended, 55 Stat. 203, 7 U.S.C.(Supp. I) § 1340, 7 U.S.C.A. §§ 1281 et seq., 1340; Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq.; United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609; Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614; Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, 7 U.S.C. § 608c, 7 U.S.C.A. § 608c; United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726; Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, 21 U.S.C. § 301 et seq., 21 U.S.C.A. § 301 et seq.; United States v. Walsh, 331 U.S. 432, 67 S.Ct. 1283, 91 L.Ed. 1585; United States v. Sullivan, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297. 10 United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493; Nigro v. United States, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600; Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772; United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510. 11 Cf. United States v. Bekins, 304 U.S. 27, 58 S.Ct. 811, 82 L.Ed. 1137, with Ashton v. Cameron County Water Improvement District, 298 U.S. 513, 56 S.Ct. 892, 80 L.Ed. 1309. 12 United States v. Denmark, D.C., 119 F.Supp. 647; United States v. Braun, D.C., 119 F.Supp. 646; United States v. Five Gambling Devices, D.C.Tenn.; United States v. 15 Mills Blue Bell Gambling Machines, D.C., 119 F.Supp. 74; United States v. 178 Gambling Devices, D.C., 107 F.Supp. 394. 13 The Government cites passages from the House Committee Report to the effect that slot machines and similar gambling devices are resulting in substantial revenues to Nation-wide crime syndicates. H.R.Rep.No.2769, supra, at 4—6. The Government also refers to statements by a Congressman and the president of a company which manufactures gambling devices to the effect that these syndicates operate in every state in the Union and reap profits in the billions of dollars. Hearings on S. 3357, supra, at 10—12, 23, 28, 29, 182, 185, 191—192; 96 Cong.Rec. 13638. 14 96 Cong.Rec. 15107. For similar statements by Senator Johnson, see 96 Cong.Rec. 15103, 15105. 15 H.R.Rep.No.2769, supra, at 5. 16 Ibid. See also statements by Senator Ferguson, 96 Cong.Rec. 15104; and Representatives Rogers, 96 Cong.Rec. 13643 13644, 16853; Bryson, 96 Cong.Rec. 13649; Rees, 96 Cong.Rec. 13654, and Dolliver, 96 Cong.Rec. 13638. * Holding that the Act requires reports of interstate sales would raise a serious constitutional question. The Act makes it a crime to transport gambling devices in interstate commerce. Consequently, requiring monthly reports of sales and deliveries made by an interstate dealer would require him to make monthly reports of his own crimes. The Fifth Amendment provides that no person shall be compelled 'to be a witness against himself.' 1 The quoted and cited statements of Senator Johnson occurred in the course of debate on the bill as a whole and particularly in reference to its ban on certain interstate shipments. Apparently the only mention of the scope of § 3 was the statement from the conference report that the bill 'requires manufacturers and dealers in gambling devices to register annually with the Attorney General of the United States.' 96 Cong.Rec. 15106. This statement occasioned no discussion. The Attorney General's statement that no 'prohibition era' was contemplated and the committee report to the same effect apparently were designed to assure some Senators that the thrust of the Act was not at the gamblers, the users of the machines, who were to be left to state law enforcement measures and officials. However this may be, I suggest that the question of who was to enforce the various provisions of the Act—state officers or federal officers—is scarcely relevant to show congressional intent as to the scope of § 3. 2 96 Cong.Rec. 15102. (Emphasis supplied.) 3 The construction urged by the appellees differs from that of Mr. Justice JACKSON. They state: '* * * the proper construction of this Act, we feel, is this: that all shipments of gambling devices in interstate commerce are prohibited except to those States where the same are legal. Manufacture or dealers shipping into those States where it is legal should be required to register with the Attorney General and file an inventory.' Brief of Appeals in Nos. 40 and 41, p. 8. (Emphasis supplied.) This construction would seem to circumvent the possible self-incrimination aspects suggested by Mr. Justice BLACK; it would also unduly strain statutory construction. 4 H.R.Rep.No.2769, 81st Cong., 2d Sess., pp. 4—6; S.Rep.No.307, 82d Cong., 1st Sess., p. 55, published after passage of the Act, made this relationship even more clear. 5 E.g., United States v. Darby, 1941, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609; Wickard v. Filburn, 1942, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Currin v. Wallace, 1939, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; United States v. Sullivan, 1948, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297. In United States v. Darby, supra, 312 U.S. at page 121, 61 S.Ct. at page 460, the Court summarized the power of Congress to control local activities as follows: 'Congress, having by the present Act adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards, it may choose the means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate activities. Such legislation has often been sustained with respect to powers, other than the commerce power granted to the national government, when the means chosen, although not themselves within the granted power, were nevertheless deemed appropriate aids to the accomplishment of some purpose within an admitted power of the national government. See (Jacob) Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260; James Everard's Breweries v. Day, 265 U.S. 545, 560, 44 S.Ct. 628, 631, 68 L.Ed. 1174; Westfall v. United States, 274 U.S. 256, 259, 47 S.Ct. 629, 71 L.Ed. 1036. * * * Similarly Congress may require inspection and preventive treatment of all cattle in a disease infected area in order to prevent shipment in interstate commerce of some of the cattle without the treatment. Thornton v. United States, 271 U.S. 414, 46 S.Ct. 585, 70 L.Ed. 1013. * * * And we have recently held that Congress in the exercise of its power to require inspection and grading of tobacco shipped in interstate commerce may compel such inspection and grading of all tobacco sold at local auction rooms from which a substantial part but not all of the tobacco sold is shipped in interstate commerce. Currin v. Wallace, 306 U.S. (1) 11, 59 S.Ct. (379) 385, 83 L.Ed. 441, and see to the like effect United States v. Rock Royal Co-op. (307 U.S. (533) 568, 59 S.Ct. (993) 1010, 83 L.Ed. 1446).' 6 United States v. Darby, supra, 312 U.S. at page 118, 61 S.Ct. at page 459; United States v. Wrightwood Dairy Co., 1942, 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726; Wickard v. Filburn, supra, 317 U.S. at page 124, 63 S.Ct. at page 88. (Emphasis supplied.) 7 Compare Linder v. United States, 1925, 268 U.S. 5, 17 45 S.Ct. 446, 449, 69 L.Ed. 819. 8 Compare Oklahoma Press Publishing Co., v. Walling, 1946, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614, holding that Congress can empower the Administrator of the Fair Labor Standards Act to issue subpoenas duces tecum to obtain information from a corporation to determine whether it is covered by the Act or has violated it. 9 Once it is established that Congress can require registration and filing, I view the forfeiture sanction imposed in No. 14 as an alternative method of enforcement, which presents no substantial additional issue. Compare United States v. Stowell, 1890, 133 U.S. 1, 10 S.Ct. 244, 33 L.Ed. 555.
01
346 U.S. 406 74 S.Ct. 202 98 L.Ed. 143 POPE & TALBOT, Inc.,v.HAWN et al. No. 13. Argued Oct. 12, 1953. Decided Dec. 7, 1953. Mr. Mark D. Alspach, Philadelphia, Pa., for petitioner. Mr. Charles Lakatos, Philadelphia, Pa., for respondent Hawn. Mr. Thomas F. Mount, Philadelphia, Pa., for respondent Haenn Ship Ceiling & Refitting Corp. Mr. Justice BLACK delivered the opinion of the Court. 1 The respondent Charles Hawn sustained severe physical injuries when he slipped and fell through an uncovered hatch hole on the petitioner Pope & Talbot's vessel. The ship was then berthed at a pier located in Pennsylvania waters of the Delaware River. Loading of the vessel with grain for a voyage had been temporarily interrupted to make minor repairs on the grain loading equipment. Hawn was doing carpentry work on this equipment to make it spread to grain evenly and thereby balance the ship's load to make the coming voyage safer. He was not an employee of Pope & Talbot's but of the respondent Haenn Ship Ceiling and Refitting Company which had been hired to make these repairs. Hawn brought this civil action in a United States District Court to recover damages for his injuries. His complaint charged that his injuries resulted from the vessel's unseaworthiness and from Pope & Talbot's negligence. In answering, Pope & Talbot denied both charges and set up contributory negligence as a defense to each. In addition, Pope & Talbot brought in Hawn's employer Haenn as a third party defendant, alleging that Haenna's negligence had caused Hawn's injury and claiming recovery over against Haenn by way of contribution or indemnity. A jury found that the ship was unseaworthy, that Pope & Talbot had been negligent, that Haenn had been negligent and that Hawn's own negligence had contributed 17 1/2% of his damages. On this basis, the court entered judgment for Hawn against Pope & Talbot for $29,700, 17 1/2% less than the $36,000 at which the jury had fixed his damages. A judgment for contribution by Haenn to Pope & Talbot was also entered. 99 F.Supp. 226, 100 F.Supp. 338. The Court of Appeals afirmed Hawn's judgment against Pope & Talbot. It reversed the judgment of contribution against Haenn. 198 F.2d 800. This Court granted certiorari. 2 The Court of Appeals reversed the judgment for contribution by Haenn on the basis of our holding in Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318. In that case we held that contribution could not be exacted under circumstances like those here involved. For that reason we affirm the Court of Appeals reversal of the District Court's judgment against Haenn and proceed to a consideration of the several questions presented by Pope & Talbot as grounds for attack on Hawn's judgment. 3 First. Petitioner urges that the jury finding of contributory negligence should have been accepted as a complete bar to Hawn's recovery. The contention appears to rest on two separate bases: (a) Admiralty has not developed any definite rule as to the effect of contributory negligence, and therefore the common-law rule under which contributory negligence bars recovery should govern in admiralty, (b) Pennsylvania law controls this case and under that state's law any contributory negligence of an injured person is an insuperable bar to his recovery. 4 (a) The harsh rule of the common law under which contributory negligence wholly barred an injured person from recovery is completely incompatible with modern admiralty policy and practice. Exercising its traditional discretion, admiralty has developed and now follows its own fairer and more flexible rule which allows such consideration of contributory negligence in mitigation of damages as justice requires.1 Petitioner presents no persuasive arguments that admiralty should now adopt a discredited doctrine which automatically destroys all claims of injured persons who have contributed to their injuries in any degree, however slight. 5 (b) Nor can we agree that Hawn's rights must be determined by the law of Pennsylvania, under which, it is said, any contributory negligence would bar all recovery in this personal injury action. True, Hawn was hurt inside Pennsylvania and ordinarily his rights would be determined by Pennsylvania law. But he was injured on navigable waters while working on a ship to enable it to complete its loading for safer transportation of its cargo by water. Consequently, the basis of Hawn's action is a maritime tort,2 a type of action which the Constitution had placed under national power to control in 'its substantive as well as its procedural features * * *.' Panama R. Co. v. Johnson, 264 U.S. 375, 386, 44 S.Ct. 391, 393, 68 L.Ed. 748. And Hawn's complaint asserted no claim created by or arising out of Pennsylvania law. His right to recovery for unseaworthiness and negligence is rooted in federal maritime law. Even if Hawn were seeking to enforce a state-created remedy for this right, federal maritime law would be controlling. While states may sometimes supplement federal maritime policies,3 a state may not deprive a person of any substantial admiralty rights as defined in controlling acts of Congress or by interpretative decisions of this Court. These principles have been frequently declared and we adhere to them. See e.g., Garrett v. Moore-McCormack Co., 317 U.S. 239, 243—246, 63 S.Ct. 246, 249—251, 87 L.Ed. 239, and cases there cited. Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968, does not support the contention that a state which undertakes to enforce federally created maritime rights can dilute claims fashioned by federal power, which is dominant in this field. 6 Another argument is that Pennsylvania law must govern here because the District Court's jurisdiction was rested on diversity of citizenship under 28 U.S.C. § 1332, 28 U.S.C.A. § 1332.4 For this contention the principle established in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, is invoked. That case decided that federal district diversity courts must try state created causes of action in accordance with state laws. This ended a longstanding federal court practice under which the outcome of lawsuits to enforce state created causes of action often depended on whether they were tried in a state courthouse or a federal courthouse. Erie R. Co. v. Tompkins was thus designed to ensure that litigants with the same kind of case would have their rights measured by the same legal standards of liability. It appears to be contended here, however, that one injured on navigable waters who sues in federal court under diversity jurisdiction somehow jeopardizes his right to have as full a recovery as he otherwise would. It is certainly contended that one who sues on the 'law side' of the docket has much less chance to recover than one who sues on the 'admiralty side.' Thus we are asked to use the Erie-Tompkins case to bring about the same kind of unfairness it was designed to end. Once again, the substantial rights of parties would depend on which courthouse, or even on which 'side' of the same courthouse, a lawyer might guess to be in the best interests of his client. We decline to depart from the principle of equal justice embodied in the Erie-Tompkins doctrine. Of course the substantial rights of an injured person are not to be determined differently whether his case is labelled 'law side' or 'admiralty side' on a district court's docket. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 88—89, 66 S.Ct. 872, 874—875, 90 L.Ed. 1099.5 The District Court and Court of Appeals correctly refused to deny Hawn's federal right of recovery by applying the Pennsylvania contributory negligence rule. 7 Second. Haenn has been making compensation payments to Hawn because of obligations imposed by the Longshoremen's and Harbor Workers' Compensation Act. 44 Stat. 1424, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. Hawn has agreed to refund these payments to his employer out of his Pope & Talbot recovery. Pope & Talbot contends that the judgment against it should be reduced by this amount. It points out that Hawn's verdict includes sums for past loss of wages and medical expenses which it is argued were the very items on account of which Hawn's employer paid him. Consequently Pope & Talbot says that if Hawn keeps the money he will have a double recovery and that to allow him to repay Haenn would give an unconscionable reward to an employer whose negligence contributed to the injury. A weakness in this ingenious argument is that § 3 of the Act has specific provisions to permit an employer to recoup his compensation payments out of any recovery from a third person negligently causing such injuries. Pope & Talbot's contention if accepted would frustrate this purpose to protect employers who are subjected to absolute liability by the Act. Moreover, reduction of Pope & Talbot's liability at the expense of Haenn would be the substantial equivalent of contribution which we declined to require in the Halcyon case. 8 Third. We are asked to reverse this judgment by overruling our holding in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. Sieracki, an employee of an independent stevedoring company, was injured on a ship while working as a stevedore loading the cargo. We held that he could recover from the shipowner because of unseaworthiness of the ship or its appliances. We decided this over strong protest that such a holding would be an unwarranted extension of the doctrine of seaworthiness to workers other than seamen. That identical argument is repeated here. We reject it again and adhere to Sieracki. We are asked, however, to distinguish this case from our holding there. It is pointed out that Sieracki was a 'stevedore.' Hawn was not. And Hawn was not loading the vessel. On these grounds we are asked to deny Hawn the protection we held the law gave Sieracki. These slight differences in fact cannot fairly justify the distinction urged as between the two cases. Sieracki's legal protection was not based on the name 'stevedore' but on the type of work he did and its relationship to the ship and to the historic doctrine of seaworthiness. The ship on which Hawn was hurt was being loaded when the grain loading equipment developed a slight defect. Hawn was put to work on it so that the loading could go on at once. There he was hurt. His need for protection from unseaworthiness was neither more nor less than that of the stevedores then working with him on the ship or of seamen who had been or were about to go on a voyage. All were subjected to the same danger. All were entitled to like treatment under law. 9 Fourth. A concurring opinion here raises a question concerning the right of Hawn to recover for negligence—a question neither presented nor urged by Pope & Talbot. It argues that the Sieracki case, by sustaining the right of persons like Hawn to sue for unseaworthiness, placed them in the category of 'seamen' who cannot, under The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, maintain a negligence action against the shipowner. The Osceola held that a crew member employed by the ship could not recover from his employer for negligence of the master or the crew member's 'fellow servants.' Recoveries of crew members were limited to actions for unseaworthiness and maintenance and cure. But Hawn was not a crew member. He was not employed by the ship. The ship's crew were not his fellow servants. Having no contract of employment with the shipowner, he was not entitled to maintenance and cure. The fact that Sieracki upheld the right of workers like Hawn to recover for unseaworthiness does not justify an argument that the Court thereby blotted out their long-recognized right to recover in admiralty for negligence.6 Neither the holding nor what was said in Sieracki could support such a contention. In fact, the dissent in Sieracki appears to have been predicated on an objection to adding unseaworthiness to the existing right to recover for negligence. It would be strange indeed to hold now that a decision which over the dissent recognized unseaworthiness as an additional right of persons injured on shipboard had unwittingly deprived them of all right to maintain actions for negligence. 10 Affirmed. 11 Mr. Justice FRANKFURTER, concurring. 12 We are told that Hawn's 'right of recovery for unseaworthiness and negligence is rooted in federal maritime law.' No case or student of admiralty is cited in support of this statement. 13 In 1903, this Court in The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, recognized for the first time the right of crew members to recover for the unseaworthy condition of their ship and denied a right of recovery against the shipowner for negligence. Not until 1920, and then by Act of Congress, 46 U.S.C. § 688, 46 U.S.C.A. § 688, were seamen given the alternatives of suing for negligence or unseaworthiness. See Pacific S.S. Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 77, 73 L.Ed. 220. As for longshoremen, they could sue their own employer for negligence in not providing safe conditions of work. And in 1926 this Court extended to them the additional benefits of the Jones Act, by construing 'seaman' to include a longshoreman. International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 17 L.Ed. 157. Congress, preferring a different mode of recovery for longshoremen than for seamen, displaced their right to sue their employer for negligence by a workmen's compensation act applicable solely to longshoremen. 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. Like other business invitees, such as passengers and freight consignees, longshoremen could also sue the shipowner for negligence. Then on April 22, 1946, this Court in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, for the first time extended to longshoremen the right to recover for unseaworthiness from the owner of the ship. The decision was based on the fact that longshoremen were doing seamen's work and that therefore they should be entitled to a seamen's remedy. Until today, this Court has never held that longshoremen have the alternative rights of action for negligence or unseaworthiness which the Jones Act gave to crew members. This summary history hardly shows such deep roots of the alternative rights of recovery that this Court should needlessly decide that such rights exist. 14 I would affirm the judgment of the Court of Appeals, because the separate finding that the ship was unseaworthy supports recovery.1 This, of course, assumes Hawn was the kind of worker who we held in Sieracki could recover for unseaworthiness. 15 The right of seamen to recover for unseaworthiness is peculiarly a cause of 'admiralty and maritime jurisdiction,' 1 Stat. 73, 77. The right is in the nature of liability without fault for which contributory negligence is not a bar to recovery, although it may be relevant in assessing the damages. Seas Shipping Co. v. Sieracki, supra. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, is irrelevant in that unseaworthiness is a federally created right, so state law on a state cause of action is not an issue. We should not commingle federal admiralty and state common-law and should not engraft onto the federally created right to recover for unseaworthiness a common-law defense foreign to that right. 16 If negligence were the only count in the complaint and the jury found it, or if the jury had found the ship seaworthy but sustained the negligence claim, different considerations would come into play not now before us. The opinion below indicates that the application of Pennsylvania law would have completely barred recovery, since the plaintiff was contributorily negligent. Therefore, to recover solely on the basis of Pope and Talbot's negligence, Hawn would have to rely on a federal maritime cause of action for negligence to which contributory negligence is not a bar. Whether such a cause of action would be available in this case is a difficult question which should not be decided here, since its disposition is unnecessary in view of the separate finding of unseaworthiness. 17 Both before and after this Court's decision in The Osceola, recognizing the right of crew members to recover for unseaworthiness, longshoremen recovered for negligence—often described as 'negligence of the ship'—as did other business invitees. Compare Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192, with The Max Morris v. Curry, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586. Although these were cases where the elements of unseaworthiness were probably present, courts rarely used that term. The plaintiff's default in such cases did not bar recovery altogether, however, but rather served to reduce the damages to be awarded. 18 In Sieracki, this Court assimilated longshoremen to seamen and held that they could recover for unseaworthiness. That decision inevitably raises doubts whether longshoremen are still entitled to recover against a shipowner for negligence, except insofar as a state right of action for negligence, to which the state rule on contributory negligence would be applicable, is enforceable. Cf. The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264. For The Osceola, in recognizing crew members' right of action for unseaworthiness, also held that they had no such right against the shipowner for negligence.2 Did Sieracki, in holding that longshoremen laboring like seamen of old in the 'service of the ship' (328 U.S. 85, 66 S.Ct. 880) were entitled to recover for unseaworthiness, leave them also with the negligence cause of action which The Osceola denied to seamen?3 19 On the one hand, it may be urged that Sieracki broadened the rights of shore workers; it gave them a seaman's status without depriving them of the right of action they had before they attained that status. On the other, it may be urged with equal reason that a longshoreman should not be able to 'play it both ways': be entitled, that is, to a seaman's remedy for unseaworthiness and also enjoy recovery from the shipowner for negligence which, prior to the Jones Act, was denied to a seaman. He would thus have available two non-statutory remedies to recover damages for his injuries, while the crew member, the true 'ward of admiralty,' has only one. And the fact that Congress in the Jones Act has given crew members a statutory cause of action for negligence hardly justifies this Court's according longshoremen alternative remedies, any more than we should now define the crew members' rights as including compensation under the Longshoremen's and Harbor Workers' Compensation Act. 20 Since unseaworthiness affords longshoremen recovery without fault and has been broadly construed by the courts, e.g., Mahnich v. Southern S.S. Co., note 2, supra, it will be rare that the circumstances of an injury will constitute negligence but not unseaworthiness. Even if such a case should arise, the longshoreman, were he barred from suing the shipowner for negligence, has available the statutory remedy against his employer which Congress has given him in the Longshoremen's and Harbor Workers' Compensation Act. 21 But the practical importance of the question is no measure of its difficulty. It raises subtle issues of such judicial lawmaking as is the main source of maritime law. We ought not to embarrass future answers to such a question by premature pronouncements, especially without the benefit of mature submissions by counsel. 22 Since the Erie problem is not here, it is also irrelevant to decide what remedy a state court could give or decline to give. We should not even imply that if suit had been brought in a state court and the Supreme Court of Pennsylvania had held that its law prevented a contributorily negligent plaintiff from recovering in Pennsylvania courts, we would overrule that judgment and require the state courts to provide a remedy. 23 Of course, when state courts purport to enforce federally created rights, they must apply the contents of those rights as determined by this Court. Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239. But whether it is federal law that a state court is enforcing or the state fails to afford a remedy in its courts is too complicated a question to be passed upon when not before us. The answer depends much too much on what the state court decides. E.g., Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968. 24 Mr. Justice JACKSON, with whom Mr. Justice REED and Mr. Justice BURTON join, dissenting. 25 It may be conducive to a dispassionate consideration of the law of this case to remind ourselves that the plaintiff below unquestionably was covered by the Longshoremen's and Harbor Workers' Compensation Act. Nobody questions his right to all that other injured harbor workers usually receive for like injury or to what this plaintiff would receive for the same injuries if suffered under slightly different circumstances. What is in issue here is a bonus recovery over and above the statutory scale of compensation that Congress has established for injured harbor workers in general, which this plaintiff claims only because of special circumstances said to create a liability by a third party, a bareboat charterer we will refer to as the shipowner. 26 This decision seems to me to so confuse maritime law with common and statutory tort law as to destroy the integrity of the former as a separate system based on the peculiarities and risks of seagoing labor. 27 1. Diversity of Citizenship and Pennsylvania State Law. 28 This case was instituted on the law side of federal district court, the complaint specifically alleging that 'jurisdiction is based on diversity of citizenship' and pleading the other requisites of that jurisdiction. After amendment, the complaint alleged both ordinary common-law negligence and lack of seaworthiness against the shipowner. As I shall presently point out, the allegations of negligence could not have been an invocation of the Federal Jones Act, which affords to seamen a federal remedy for negligence. It appears to have been an invocation of the negligence law of the Commonwealth of Pennsylvania, in the territorial waters of which the injury was sustained. This may have been permissible because § 9 of the Judiciary Act of 1789, 1 Stat. 76—77, gave the District Courts of the United States 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction * * *; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it * * *.' Under this reservation it would appear that there is considerable room for application of state law, although I do not undertake to guess how much. Cf. Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968. 29 This being the form of action, the plaintiff had a jury trial. The court's instructions scrambled common-law negligence doctrines with admiralty principles of indemnity for unseaworthiness. 30 But, as a diversity action based on the tort law of Pennsylvania, plaintiff's case must fail because the jury, in answer to special interrogatories, reported that the plaintiff himself was guilty of negligence which contributed 17 1/2% to his injuries. Under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the law of the state of injury would apply to the case and, under Pennsylvania law, contributory negligence defeats recovery. Therefore, some other basis must be found to sustain the verdict. 31 2. Action for Negligence. 32 The failure of maritime law to afford a remedy for negligence, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, was overcome by the Federal Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688, which provides an action for negligence with jury trial. But this plaintiff's difficulties, under this Act, were so formidable that his counsel makes no claim that the recovery can rest upon it. Notwithstanding this, case after case which was decided under the Jones Act is cited by the Court today, which implies that the Court relies on the Jones Act to help out in some way toward supporting the recovery here. But that Act gives a right of action only against the employer, and this plaintiff was not employed by the shipowner. Moreover, the Jones Act gives its right of action only to seamen, and this claimant is not a seaman. 33 It is clear that Congress provided the compensation remedy, not the Jones Act remedy, for such a case as this. In International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157, this Court attempted to allow recovery by a longshoreman against his employer under the Jones Act. Immediately Congress passed the Longshoremen's and Harbor Workers' Compensation Act, which made exclusive, as against the employer, the compensation remedy it conferred on longshoremen and harbor workers. So the Jones Act is not available to support a recovery against this plaintiff's employer because of provisions of the compensation Act, nor against the shipowner because the Jones Act makes no one liable who is not an employer. Therefore, as a tort action this case cannot be sustained under the Federal Act. 34 If plaintiff was invoking Pennsylvania negligence law—the ordinary law of the business invitee—he cannot recover because he was contributorily negligent. The only possible basis for recovery is a maritime tort. The question is a tricky and difficult one, resurrecting old cases which involved many aspects of maritime law no longer in force. In any event, the charge below so scrambled two theories of recovery that the jury could not possibly have had a fair understanding of the law of the case. The jury was instructed on the one hand that negligence was not necessary to recovery because of the unseaworthiness theory and on the other that negligence itself was a basis for recovery. The least petitioner was entitled to was a submission which would eliminate the confusing doctrine of liability without fault not applicable to the 3. Indemnity for Unseaworthiness. 35 Along with the claim of common-law negligence there was submitted to the jury in this case, as an alternative basis of liability, the claim that the ship was unseaworthy. It is true that a seaman has a right to indemnity or compensatory damages where he can show injury from unseaworthiness of the ship. 36 As was explained in the Osceola, supra, 189 U.S. at page 171, 23 S.Ct. at page 485, 47 L.Ed. 760, this was adopted into our maritime law from British legislation, wherein 'in every contract of service, express or implied, between an owner of a ship and the master or any seaman thereof, there is an obligation implied that all reasonable means shall be used to insure the seaworthiness of the ship before and during the voyage.' This obligation was adopted into American admiralty law as a warranty of seaworthiness, of which the owner is not relieved by exercise of due diligence and which rests on wholly different principles from those of negligence. Mahnich v. Southern S.S. Co., 321 U.S. 96, 100, 64 S.Ct. 455, 457, 88 L.Ed. 561. But this case was begun, tried, submitted and decided as a negligence action, while it is sustained here on an admiralty doctrine of liability for breach of warranty which does not at all depend upon negligence. 37 The principal reliance of the Court is on Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. That decision advanced a novel holding that the traditional warranty of seaworthiness extended not only to seamen but also to longshoremen. This was a virtual repetition of the Court's earlier effort in the International Stevedoring Co. case, supra, to give seamen's remedies to longshoremen, an effort which was promptly rebuffed by Congress when it enacted the Longshoremen's and Harbor Workers' Compensation Act to preserve the traditional distinction. But a much greater departure than that which Congress rejected must be taken here if the warranty of seaworthiness is to be further expanded to sustain this recovery. There may be some logic in saying that when a longshoreman or stevedore is brought aboard to load a ship, the ship should be fit for sailing. But it seems to me that the extension of this implied warranty to a repair crew which works for an independent contractor is unjustified. The Court can cite no authority for such a holding, and I think there is no logic in it. 38 This claimant was a carpenter in the employ of a ship repairing company. That company had a contract to make certain repairs aboard this ship and the claimant was sent aboard by his employer, under whose direction he worked. It does not seem to me that one who hires a contracting firm to put his ship in seaworthy condition guarantees that it is in seaworthy condition before the work starts. If everything were ship-shape, he would not need the services of the repairmen. 39 I think that the expansion of the warranty of seaworthiness from a seaman to a repairman is illogical, contrary to any decisional law and not consistent with the scheme of Congress to maintain a sharp distinction between the seafaring man and the harbor worker. 40 From ancient times admiralty has given to seamen rights which the common law did not give to landsmen, because the conditions of sea service were different from conditions of any other service, even harbor service. The seaman on board a merchant ship ties his fate to that of the ship and joins its separate community for the voyage. Under earlier conditions seagoing labor was extremely hard. Voyages were long, tedious and treacherous. Shipwreck, stranding, capture by pirates. fire, and other eventualities threatened. Scurvy was common, and the ships were little prepared to combat disease. Discipline was harsh and cruel, and savage punishments were inflicted. Poor food, cramped quarters, long hours and complete subjection to the will of the master was the rule. While his lot has been ameliorated, even under modern conditions the seagoing laborer suffers an entirely different discipline and risk than does the harbor worker. His fate is still tied to that of the ship. His freedom is restricted. He is under an unusual discipline and is dependent for his food, medicine, care and welfare upon the supplies of the ship. Contrast the lot of this plaintiff who lived at home, was free to leave his employment, took no risks of the sea and had no different condition or hazard attached to his employment than would have attached to a carpentry job in a building ashore. 41 That the sharp differentiation Congress made in the rights of a seamen as contrasted with harbor workers has a basis in differences in risk and working conditions will be apparent from a study of 46 U.S.C., c. 18, 46 U.S.C.A. § 541 et seq., which governs merchant seamen. I point out some of the most obvious respects in which this claimant's position as a land-based laborer, free to bargain, strike or quit, and subject to no extraordinary hazards, differed from that of most seamen (there are certain exceptions) who are employed as a part of the ship's crew. 42 The Government superintends the engagement and discharge of seamen and apprentices and the terms and execution of their contract, and provides for their presence on board at the proper time. §§ 545, 561, 565. A master and the vessel are subject to penalties for taking on a seaman as one of the crew except by virtue of an agreement under such supervision. §§ 567—568, 575. But the penalties are not all on the master and the vessel. Every contract must provide the day and hour when the seaman shall render himself on board the ship. If the seaman shall neglect to be on board at the time mentioned without giving twenty-four hours' notice of his inability, he may forfeit for every hour which he shall so neglect to render himself one-half of one day's pay. If he wholly neglects to appear or deserts, he shall forfeit all of his wages and emoluments. § 576. Unlike the land laborer, the seaman may forfeit his wages if he has not 'exerted himself to the utmost to save the vessel, cargo, and stores * * *.' § 592. The seaman may not be paid any wages in advance of the time he has earned the same, and his assignment or allotment to dependents of his wages is restricted. § 599. The seaman is deprived of credit, for no sum exceeding one dollar shall be recoverable from him by any one person for any debt contracted during his service. § 602. 43 It is so important to the seaman that the ship be seaworthy that a majority of the crew may complain that the vessel is unseaworthy or unfit in crew, body, tackle, apparel, furniture, provisions or stores to proceed on an intended voyage and thereupon require an inquiry and a determination, and, if the charge is not sustained and the seamen refuse to proceed, they shall forfeit any wages due them. §§ 653, 655. So dependent are they that the Government provides inspection of the crew quarters, which must comply with standards, §§ 660—1, 660a, and the seamen may complain as to the provisions or water and obtain an examination. § 662. 44 More importantly, the seaman is not a free man. He may not, as the longshoreman or harbor worker may, protect himself by striking or quitting the job. Desertion, refusing without reasonable cause to join his vessel, absence without leave at any time within twenty-four hours of the vessel's sailing from any port, or absence from his vessel and from his duty at any time without leave and without sufficient reason, or quitting the vessel without leave after arrival at port and before she is in security, are all punishable by certain forfeitures of his wages. Moreover, at the option of the master, willful disobedience to any lawful command at sea is punishable by being placed in irons until such disobedience shall cease, and for continued willful disobedience to such command or neglect of duty the seaman may be placed in irons and four days out of five on bread and water until such disobedience shall cease. To these penalties are added certain other forfeitures. § 701. There is more, but this is enough to demonstrate that Congress knew and respected the difference between the seaman to whom it preserved admiralty remedies plus the remedies of the Jones Act, and harbor workers, such as this claimant, who are given the remedies of the compensation Act, like most other shore workers. 45 I cannot bring myself to believe that it is either the congressional will or the tradition of maritime law or common sense to mingle the two wholly separate types of labor in their remedies as is being done in this case. There are other questions in the case as to division of the damages which I need not discuss, in view of my conclusion that there is no basis for recovery. I would reverse the judgment below. 1 E.g., The Max Morris v. Curry, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586; The Arizona v. Anelich, 298 U.S. 110, 122, 56 S.Ct. 707, 711, 80 L.Ed. 1075, and cases cited; Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 428—429, 59 S.Ct. 262, 265, 83 L.Ed. 265; Jacob v. New York City, 315 U.S. 752, 755, 62 S.Ct. 854, 855, 86 L.Ed. 1166; and compare Garrett v. Moore McCormack Co., 317 U.S. 239, 244—245, 63 S.Ct. 246, 250—251, 87 L.Ed. 239, with Belden v. Chase, 150 U.S. 674, 14 S.Ct. 264, 37 L.Ed. 1218. 2 Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 61—63, 34 S.Ct. 733, 735, 58 L.Ed. 1208. 3 See e.g., Just Chambers, 312 U.S. 383, 387—392, 668, 61 S.Ct. 687, 690—693, 85 L.Ed. 903; Kelly v. State of Washington ex rel. Foss Co., 302 U.S. 1, 13, 58 S.Ct. 87, 93, 82 L.Ed. 3. 4 The complaint shows diversity which is sufficient to support jurisdiction of the District Court. The complaint also shows that the claim rests on a maritime tort which under the Constitution is subject to dominant control of the Federal Government. In this situation we need not decide whether the District Court's jurisdiction can be rested on 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, as arising 'under the Constitution, laws or treaties of the United States.' See Doucette v. Vincent, 1 Cir., 194 F.2d 834 and Jansson v. Swedish American Lines, 1 Cir., 185 F.2d 212, 30 A.L.R.2d 1385. Cf. Jordine v. Walling, 3 Cir., 185 F.2d 662. 5 Of a somewhat similar contention this Court said that it did not regard certain words in the Jones Act, 46 U.S.C. § 688, 41 U.S.C.A. § 688, 41 Stat. 1007 'as meaning that the seaman may have the benefit of the new rules if he sues on the law side of the court, but not if he sues on the admiralty side. Such a distinction would be so unreasonable that we are unwilling to attribute to Congress a purpose to make it.' Panama R. Co. v. Johnson, 264 U.S. 375, 391, 44 S.Ct. 391, 395, 68 L.Ed. 748. 6 Illustrative of the unbroken line of federal cases holding that persons working on ships for independent contractors or persons rightfully transacting business on ships can recover for damages due to shipowners' negligence are: Leathers v. Blessing, 1882, 105 U.S. 626, 26 L.Ed. 1192; The Max Morris, 1890, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586; Gerrity v. The Kate Cann, D.C.1880, 2 F. 241; The Helios, D.C.1882, 12 F. 732, decision by Judge Addison Brown; Grays Harbor Stevedore Co. v. Fountain, 9 Cir., 1925, 5 F.2d 385; Tide Water Associated Oil Co. v. Richardson, 9 Cir., 1948, 169 F.2d 802; Brady v. Roosevelt S.S. Co., 1943, 317 U.S. 575, 577, 63 S.Ct. 425, 426, 87 L.Ed. 471. See also cases collected in 44 A.L.R. 1025—1034. 1 No objection was raised at any point in this case to the trial by jury, so the question is not before us whether the plaintiff was entitled to a jury in a suit based on both maritime and common-law causes of action. 2 Although this holding was based in part on the fellow servant rule, it went further. For it stated that while it was doubtful whether the master of the ship was a fellow servant, the crew member could not recover against the owner for the master's negligence. The Osceola's holding that negligence is not available as a cause of action against the shipowner has been reaffirmed by this Court in Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, and Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1172. 3 The Sieracki case itself was wholly unconcerned with a stevedore's right to recover for negligence of the shipowner and also hold him for unseaworthiness. There is not the remotest intimation in either the majority or the minority opinion that any thought was given to the question whether the stevedore was to have these two rights, although a member of the crew was denied them prior to the Jones Act and the Jones Act does not apply to longshoremen.
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